By Christopher B. Healy |  chealy@bathweg.com

By Michael M. DiCicco | mdicicco@bathweg.com​

From a purely legal perspective, the term “immigrant” means one who intends to reside permanently in the United States. Thus, if one is in the United States on a student, work or tourist visa, he is not an immigrant. In common language, however, we generally refer to any person living in the United States who is not a citizen as an immigrant. Thus, the term immigrant as used here refers to ​a) legal permanent residents, a/k/a “green card holders” or documented immigrants, b) undocumented immigrants, and ​c) visa holders, that is, persons who do not intend to reside permanently in the United States. This article sets forth some of the rights that “immigrants” have because they live in the United States.

Below are six things you should know about the rights of immigrants:

In recognition of the fundamental precept of the Declaration of Independence that all men “are endowed by their Creator with certain unalienable Rights,” the United States grants persons – immigrants and citizens alike – certain fundamental rights. To better understand these rights or if you have a question about immigration, please contact Michael M. DiCicco, a partner at Bathgate, Wegner & Wolf. 

Read Michael DiCicco's article  Four Things About Immigration That You Should Know

Many people leaving the Garden State Parkway at Exit 89 or driving on Cedar Bridge Road wonder what activities occur under the steeply pitched roofs of the unique building known as One Airport Road, Lakewood, New Jersey.  That iconic building is the home of the Bathgate Wegener & Wolf law firm.  Our law firm employs 45 people and we occupy the entire building.  Our unique building has been named in an architectural guide book as one of 150 Best Buildings in New Jersey.   

This truly unique building was designed by Noboru Kobayashi.  The architectural guide book describes the building as having a “spare and elegant design … made up of pure geometric forms that recall both Shinto temples and the Louis Khan Bath House in Ewing Township.  The complex consists of nine square pavilions of ascending dimension offset from each other on diagonal axes.  The pavilions are capped with steeply pitched pyramidal roofs covered by wood shingles”.
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From the unique roofline it might seem there are several buildings.  Actually, there is only one building that has a roofline consisting of nine pyramids.  Although it appears that the pavilions are separate structures, the building has a unified floor plan consisting of several intersecting ovals.

​Beginning with its stone entry terraces, the building has many unique features. Our main entrance is framed by fountains, a moat and a waterfall.  The fountains are not only visually dramatic but also generate a pleasing sound as the water cascades down the waterfall and is propelled high into the air before splashing into the largest of the reflecting pools.

​The interior of the building is graced by two gardens that provide a very pleasing internal landscape of shrubbery and flowers. One of those gardens has its own pool. The internal gardens, open to the sky, provide light and air that enlivens the interior of several of the pavilions.

​The reception area has a soaring ceiling capped by a glass peak and brick walls that are accented by the soft glow of wall mounted lights.  From that vantage point our clients and visitors are able to view the interior gardens. 

​A truly attractive feature of one of the pavilions is a library constructed as a room within a room.  This pleasing architectural dimension permits access to our bound book collection without the stacks of shelves typically associated with traditional libraries.  In our modern law firm, each of our 45 individual computer terminals has direct access to the latest version of computerized legal research software.

​Anyone who is interested in touring the public areas of the Bathgate Wegener & Wolf, P.C. office will have that opportunity in conjunction with the upcoming immigration seminar that we will host.
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​To discuss the unique characteristics of the Bathgate Wegener & Wolf, P.C. building or legal issues please call partner William J. Wolf (732-363-0666).  For more information regarding Bathgate Wegner & Wolf, please visit our website at www.bathweg.com.

I. Overview
​That the United States is a land of immigrants is as American as baseball, apple pie and the 4th of July. Today, however, there may be no more divisive issue in the United States than immigration policy. This article does not address the pros and cons regarding liberal or conservative immigration policies. Instead, it is educational in approach inasmuch as it explains uncontroversially who is permitted to enter the United States under our immigration laws. 
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II. Immigration: What Is It?
​Immigration is the action of coming to live permanently in a different country. According to the Congressional Research Service, “Immigrants are persons admitted as legal permanent residents of the United States.” Immigration admissions are subject to detailed rules that set numerical limits and establish preference categories designed to limit and prioritize admission into the United States. 

III. Who Is Eligible?
​The immigration system in the United States considers priority factors and personal status preference in determining who is eligible to become a permanent resident of the United States. The priority factors are family reunification and employment skills and talents including ability for capital investment. The system also creates a personal status preference that permits refugees and asylum seekers to gain permanent residency and creates a diversity lottery for those seeking entry without priority status. ​

IV. How Many Immigrants?
The Immigration and Naturalization Act provides for an annual worldwide limit of 675,000 permanent immigrants not including limited exceptions for close family members, refugees and asylum seekers. Generally, the 675,000 limitation includes 480,000 family based immigrants, 140,000 employment based immigrants and 55,000 diversity based immigrants. In addition to the 675,000 aggregate limitation, the United States places a limit on how many immigrants can come to the United States from any one country. No group of family based or employment based immigrants from a single country can exceed 7% of the total amount of people immigrating to the United States in one year. In 2016, the President set the worldwide refugee ceiling for immigration to the United States at 85,000 while about 25,000 immigrants were asylum seekers granted permanent status. ​

Conclusion
Although immigration raises complex political and public policy considerations, the United States remains committed to immigration. This dynamic area of the law will be particularly relevant as the Unites States considers public policy changes regarding immigration. 

​​If you have a question about immigration, please contact Michael M. DiCicco, a partner at Bathgate, Wegener & Wolf.

If the employer fails to satisfy any one of the three criteria set forth in the ABC test, the result is that a worker is classified as an employee.

Part A requires that the employer show that it neither exercised control over the worker nor had the ability to exercise control in terms of the completion of the work. “In establishing control for purposes of part A of the test, it is not necessary that the employer control every aspect of the worker’s trade; rather, some level of control may be sufficient.” This inquiry extends to the actual performance of the work, and the control that the employer has over the worker’s performance of the work.

Part B requires that the employer show that the services provided were “either outside the usual course of the business … or that such service is performed outside of all the places of business of the enterprise.” Part B of the ABC test focuses on identifying “the usual course of the business for which the individual has been retained to provide services or the usual place or places at which the employer performs its business.”

Part C requires that the employer show that the worker “has a profession that will plainly persist despite the termination of the challenged relationship.” This part of the test “calls for an enterprise that exists and can continue to exist independently of and apart from the particular service relationship. The enterprise must be one that is stable and lasting – one that will survive the termination of the relationship.” 

The use of a singular test for determining whether a worker is an employee or independent contractor provides workers with knowledge of  “when, how, and how much [they] will be paid” that is not reliant on a case-by-case analysis. "The ABC test provides an analytical framework to decide whether a person claiming unemployment benefits or seeking the protection of … wage-and-hour provisions … or … wage-payment provisions … is an independent contractor or an employee. It presumes that the claimant is an employee and imposes the burden to prove otherwise on the employer.”

Key Takeaways

• It is presumed that a worker is an employee and the burden is on the employer to prove otherwise.
• An employer is required to pay state and federal unemployment tax, social security tax and worker’s compensation/disability premiums for employees but is not required to make any of these payments for independent contractors.
• Employees are entitled to be paid overtime and to receive unemployment and worker’s compensation benefits; independent contractors are not.
• Audits by the IRS or the New Jersey Department of Labor that reveal misclassification of employees as independent contractors may result in the assessment of back taxes, interest and penalties.

​Conclusion
Whether a worker is an employee or independent contractor is a fact sensitive inquiry. Correct classification is important. An employer who misclassifies workers is subject to back taxes and penalties. An employee who is misclassified may be getting short-changed because the employee is not being paid overtime and receiving unemployment and worker’s compensation benefits.

Michael M. DiCicco, a partner at Bathgate, Wegener & Wolf, has represented employers and workers in wage and hour disputes and other employment issues such as claims under the New Jersey Law Against Discrimination and Title VII.   If you have a question regarding employment law, please contact Mr. DiCicco.

By Pamela Madas Snyder |  psnyder@bathweg.com

In Part 1 of this series, we looked at four different scenarios when a Power of Attorney or Guardianship might be appropriate.  We also looked at the basic requirements to begin a Guardianship application to the Court.  In Part 2 of this 3 part series, we discussed the court hearing process, the possibility of the appointment of a Temporary Guardian, and the bonding requirements for a Guardian.  In Part 3 of this 3 part series, we discuss some of the tasks that must be performed by the Guardian, the reports which must be filed by the Guardian, and the compensation that a Guardian may receive for performing his or her duties.

C.  AFTER THE JUDGEMENT OF INCAPACITY AND APPOINTMENT OF GUARDIAN
​Congratulations! You’ve been appointed as Guardian of your loved one.  Just when you thought your involvement with the Court is over, now the Court oversight begins.  Being appointed as Guardian imposes significant responsibility and record-keeping.  Further, once the Court appoints you as Guardian of your loved one, you do not have unfettered rights to your loved one’s assets, income and health care decisions.  If the Guardian wishes to sell any of the incompetent person’s property, the Guardian must make an application to the Court to do so.  Similarly, Court approval is necessary if the Guardian seeks to gift assets for the purpose of estate or Medicaid planning. (NJSA 3B:12-49,  3B:12-58 and 3B:12-59).

1. Filing of Reports

  The Guardian must complete several reports each year, beginning with an initial Inventory of Assets.  This initial inventory is usually due within seven (7) to thirty (30) days of the appointment.  Further, each year, the Guardian must complete a Report of Well Being of the incompetent person and must also complete an Accounting of all funds that the Guardian has handled during the year, all income received, and all expenses that the Guardian has paid.  Both of these annual reports are submitted to the Surrogate Court of the County that decided the Guardianship Application.  If the Court has any questions regarding the reports, the Guardian may have to provide supplemental information.
     2.    Commission
A Guardian may receive monetary compensation for his or her work as Guardian.    The commission amounts are set forth in NJSA 3B:18-24 and 3B:18-25.  Presuming the incompetent person has assets and income, the Guardian is entitled to the following commissions on an annual basis without prior court approval:

1. Six percent (6%) on the income received on behalf of the incompetent person, and
2.  $5.00 for each $1,000.00 of principal corpus for the first $400,000.00, and $3.00 for each $1,000.00 of principal corpus on amounts exceeding $400,000.00.

Therefore, by way of example only, if the incompetent person has assets totaling $1,000,000.00, and receives $100,000.00 worth of income in a year, the Guardian is statutorily entitled to $3,800.00 on the principal and $6,000.00 on the income for a total annual commission of $9,800.00.

​The Guardian may also receive a termination/distribution commission.  The amount of the termination/distribution commission is based, in part, not only upon the value of the assets, but also upon the length of time the Guardian has acted as Guardian when the termination or distribution occurs.  These termination commission amounts are set forth in NJSA 3B:18-28.

D. CONCLUSION
Being appointed a Guardian for your loved one imposes certain record-keeping and report filing requirements.  Once you are appointed Guardian, the court involvement in your loved one’s estate does not end.  While the Guardianship application process is concluded, the Court oversight begins.  This Court oversight continues until the Guardianship is terminated.

The best way to reduce the expenses associated with a Guardianship is to discuss and finalize your estate plans, long term care plans and Power of Attorney preferences with a knowledgeable attorney while you are still mentally competent and can make those decisions on your own.  As our society ages and as the law continues to recognize the independent legal rights of “children” once they reach eighteen (18) years of age, the need for Powers of Attorney and Guardianships is becoming increasingly important.  Having a Power of Attorney or estate plan is no longer limited to the rich and famous or elderly; even college-aged children should consider having Powers of Attorney in place. If there are questions regarding your or a loved one’s mental competency to sign a Power of Attorney, ask your family physician or neurologist to perform a competency exam such as the mini mental status exam. 

If your loved one does not have the mental capacity to sign a Power of Attorney, all is not lost.  An alternative to the Power of Attorney is a Guardianship for your loved one.  A Guardianship requires an action in court and physician/psychologist certifications. Navigating the maze of Guardianship applications on your own can be both confusing and overwhelming.  Because the Guardianship process requires a Complaint being filed with the Court,  a copy of the Complaint will be provided to your loved one over whom you seek Guardianship.  This may cause tension and misunderstandings between you and your loved one if you make the application on your own.  Having an attorney to prepare the Guardianship application and to guide you through the Guardianship process can help reduce the confusion, sense of overwhelming, tension and misunderstandings. 

If you wish to have a Power of Attorney or other estate planning documents drafted, or if you are concerned about your loved one’s ability to manage his or her financial affairs, medical treatment, health care decisions and overall well-being, or if you just received a copy of a  guardianship application made by someone for your loved one, contact Pamela M. Snyder, Esq. or one of our other attorneys at the law firm of Bathgate, Wegener & Wolf, P.C.  to discuss your and your loved one’s legal options. 

Pamela M. Snyder, a partner with the law firm of Bathgate, Wegener & Wolf, P.C. located in Ocean County, New Jersey, focuses a portion of her practice on estate planning, guardianships, Powers of Attorney, Wills, Special Needs Trusts and probate litigation in Ocean and Monmouth Counties. 

 ByBrian W. McAlindin, Esquire | bmcalindin@bathweg.com​

Nearly four years after Superstorm Sandy made landfall in Ocean County, NJ, a jury has rendered its first verdict in favor of  homeowners against a home improvement contractor repairing Sandy damage.  In August, an Ocean County jury sided with the homeowners in their suit against Price Homes Group (PHG).  PHG was a fledgling home building contractor that, like many others, spawned in the aftermath of Superstorm Sandy.  The entity was formed 100 days after the most powerful storm to affect the Jersey coast made landfall.  The storm caused billions of dollars in property damage as a result of wind and flood.  Despite being newly formed, PHG enjoyed the illustrious status of being a “qualified builder” under the State’s RREM (Reconstruction, Rehabilitation, Elevation and Mitigation) Program administered by the Department of Community Affairs (DCA). Under the RREM Program, the DCA checked whether a contractor was a registered Home Improvement Contractor licensed to do business in New Jersey, and whether it had been debarred from doing business with the government.  By now many have heard horror stories of the RREM program.  RREM later allowed homeowners receiving such grants to select their own contractors.  Sadly, in spite of a trial victory for the homeowners, whether they will ever see any of the $300,000 in damages awarded against PHG remains to be seen.  The three principals of the company have declared bankruptcy and PHG vows to appeal the verdict.  There are at least fifteen other such suits against PHG. 
 
Whether embarking on a home improvement project as a result of Sandy or otherwise, the lessons of the PHG experience are apparent to homeowners and contractors alike.  As shocking as it may seem, many enter into home improvement projects, often as big or bigger than the home purchase itself, without a written contract that identifies the scope, cost and timing of such a project, and do so without checking to see whether a contractor is a registered Home Improvement Contractor. The NJ Consumer Fraud Act (CFA) requires that any residential home improvement agreement over $500 must be in writing, as well as any change orders, and include:

A contractor that fails to comply with the CFA runs the risk of exposing itself to a consumer fraud action, in addition to the standard breach of contract action by a homeowner that the work does not meet the terms of the contract and is not completed in a workmanlike manner, and/or consistent with applicable building codes.  Any contractor found to have caused an ascertainable loss as a result of a “deceptive business practice” and to comply with the Act’s requirements, runs the risk of not only damages for  the costs of repairs to properly complete the project, but also treble (tripling of) damages, attorney’s fees and costs of suit.  There is New Jersey case law that further allows such damages to be assessed against the principals or officers of a corporation (“pierce the corporate veil”) if actual participation in such deceptive business practice by the principal or corporate officer is shown.  While budgets may be strained by any contemplated home improvement project, it behooves a homeowner to have a consultation with a qualified attorney before blindly wading into the treacherous waters of home improvement.  If you earn your living as a New Jersey Home Improvement Contractor, you must be aware of your legal obligations. You must register with the Division of Consumer Affairs consistent with the Contractor Registration Act and be sure your contracts are Consumer Fraud Act compliant, otherwise your next project may be “on the house”.  A home improvement contract that fails to comply with the CFA is deemed void and the contractor’s only right to receive compensation for such work and materials is the value of such services and materials provided (quantum meruit) without any profit.  It has been held that even quantum meruit recovery is questionable because the purposes of the CFA are to punish the wrongdoer and deter others from such conduct.
 
Brian McAlindin, Esq. is a Partner at Bathgate, Wegener & Wolf, PC and a Certified Civil Trial Attorney with expertise in construction litigation on behalf of both homeowners and contractors, as well as personal injury actions.   

Although not favored in the law because they interfere with one’s right to use and enjoy real property, restrictive covenants are enforceable.  Restrictive covenants limit how a property owner can use his property and what he can build on property. Generally, the restrictions are contained in the deed that transfers the property or some document that relates to the property, like a subdivision approval.  Typical restrictions prevent houses of a certain size or style to be built on the property or limit the property to residential or commercial use.  Restrictions that limit one’s use and enjoyment of property cannot be disregarded by the owner of the property, but relief may be available to a property owner who wants to remove the restrictions.

Historically, courts enforce restrictive covenants that are contained in a deed or other document that is within an owner’s chain of title.  If the restriction is “clear, explicit, and unambiguous,” and does not violate public policy, it will be deemed valid on its face and will be enforced by a court.  For example, a restriction that limits the height of houses in a particular neighborhood so that all of the property owners retain unobstructed water views is enforceable because it is clear, explicit and unambiguous.  Conversely, a restriction that prevents a property from being sold to members of a specific race, religion, or ethnicity is unenforceable because it violates public policy.

Once it is determined that a restrictive covenant is valid on its face and thus enforceable, an owner may be able to eliminate the restriction through three different ways:

Read The Basics: New Jersey Construction Lien Law by Michael DiCicco, Esquire

​In Part 1 of this series, we looked at four different scenarios when a Power of Attorney or Guardianship might be appropriate.  We also looked at the basic requirements to begin a Guardianship application to the Court.  In Part 2 of this 3 part series What Is Guardianship In New Jersey and How Does It Work, we discuss what will happen at the court hearing.

THE HEARING
 a.        Notice of Hearing Date
Approximately 2 weeks after the application to have your loved one declared incompetent is submitted, the Court will set a date for the initial hearing. Once the initial hearing is scheduled, the person who seeks to be appointed as the Guardian must notify the alleged incompetent, his or her next of kin and anyone else who has a degree of relationship superior to that of the applicant of the date and time of the hearing, and the person’s ability to challenge the application.  In certain circumstances, the Office of Public Guardian must also be notified of the application and given an opportunity to review and respond to it.  The next of kin or other interested party may hire an attorney to represent their interests in the application or they may represent themselves, pro se.  The next of kin or interested party is permitted to challenge both  the requested declaration that your loved one is  mentally incompetent and your appointment as Guardian.  Because your loved one will receive a copy of the filed papers, your loved one will be advised not only that there is a request to have him or her  declared mentally incompetent, but also of the name(s) of the person(s) seeking Guardianship. 
 
b.        Appointment of Temporary Guardian
On occasion, the Court will appoint a Temporary Guardian for your loved one while the Guardianship application is pending.  The Temporary Guardian serves until the Court makes its final determination regarding a permanent Guardian.  The Temporary Guardian can be the person(s) submitting the application for Guardianship, or it can be someone else selected by the Court.  If the Court does not appoint the applicant as the Temporary Guardian, the Court may appoint an attorney (separate from the court appointed attorney who will represent your loved one in the Guardianship application process) or an accountant or other professional as the Temporary Guardian. The fees charged by the Temporary Guardian are usually paid from your loved one’s assets.
 
c.        Court Appointed Attorney For Alleged Incompetent Person
The Court will appoint an attorney to represent your loved one.  The Court appointed attorney is not free.  He or she is usually paid from the assets of the alleged incompetent.  This attorney will not only present your loved one with a copy of the papers submitted to the court, but will also spend some time with your loved one, interview him or her, will likely interview the guardian applicant, and will research whether your loved one previously signed a Power of Attorney or a Last Will and Testament.  Once the Court appointed attorney’s research and interviews are complete, she will submit a report of recommendations to the Judge.  Although the court appointed attorney represents your loved one, your loved one may hire his or her own private attorney at your loved one’s own expense to represent his interests and challenge a Guardianship application.
 
d.        Conduct of the Hearing
If the Guardianship Application is not contested and the Court appointed attorney agrees with the Application, then the Court may not require anyone to be present at the hearing and the Judge  will make his decision based upon the papers presented to him.  However, if the Guardianship Application is contested, during the initial hearing the Judge will consider:  (a) the written papers submitted to it that support and oppose the Guardianship, and (b) oral arguments (but not witness testimony) regarding the Guardianship Application.  Usually, live witness testimony is not presented to the Court during the initial hearing.  In both contested and uncontested Guardianship Applications, the Court will review and consider the observations and recommendations of the court appointed attorney.  Sometimes, the Court decides that it does not have enough information to make an immediate determination on the Guardianship application.  If that is the case, the Court will schedule another hearing and may request that additional information be submitted to the Court.  At the second hearing, the Court may hear sworn testimony from (a) the person alleged to be incompetent, (b) the person applying to be the Guardian of the alleged incompetent, (c) the physicians, psychologist or psychiatrist who conducted examinations of the alleged incompetent, and (d) any other persons with an interest in the application or who have information regarding the alleged incompetent.  Only after receiving all the information, evidence and testimony that the Court deems necessary and appropriate, will the Judge decide whether your loved one needs to have a Guardian appointed, and if so, who will be appointed the Guardian.
 
e.        Bond Amount
In addition to deciding whether your loved one is mentally incapacitated and who should serve as Guardian, the Court will also decide the amount of the bond, i.e.,  insurance policy, that must be obtained by the person appointed as Guardian.  The amount of the bond is generally based upon the value of the assets of your loved one.  The bond is obtained by the potential Guardian, usually after a general background check, credit check and payment of a bond premium.  The bond premium must be paid every year, and usually can be paid from the incompetent person’s assets.
 
f.        Conclusion
If your loved one does not have the mental capacity to sign a Power of Attorney, all is not lost.  An alternative to the Power of Attorney is a Guardianship for your loved one.  A Guardianship requires an action in court and physician/psychologist certifications. Because the Guardianship process requires a Complaint being filed with the Court,  a copy of the Complaint will be provided to your loved one over whom you seek Guardianship.  Additionally, the next of kin of the alleged incapacitated person, along with those person(s) who have a degree of relationship superior to the applicant requesting to be appointed as Guardian must receive notice of the application.  This may cause tension and misunderstandings between you and your loved ones if you make the application on your own.  Only after a Judge is confident that he or she has received and reviewed all of the evidence and testimony necessary to make a determination regarding your loved one’s mental competency and appropriateness of a Guardianship will a judge make his or her ruling. If a Guardianship is granted, that ruling will include a Judgment of Legal Incapacity, the name of the person appointed as Guardian and the amount of bond that will need to be secured before the appointment of the Guardian can be finalized.   Having an attorney prepare the Guardianship application and guide you through the Guardianship process can help reduce the confusion, sense of overwhelming, tension and misunderstandings that can accompany a Guardianship application.  In Part 3 of this 3 part series, we will discuss a Guardian’s duties after being appointed by the Court.
 
If you wish to have a Power of Attorney or other estate planning documents drafted, or if you are concerned about your loved one’s ability to manage his or her financial affairs, medical treatment, health care decisions and overall well-being, or if you just received a copy of a  guardianship application made by someone for your loved one, contact Pamela M. Snyder, Esq. or one of our other attorneys at the law firm of Bathgate, Wegener & Wolf, P.C.  to discuss your and your loved one’s legal options.

Pamela M. Snyder, a partner with the law firm of Bathgate, Wegener & Wolf, P.C. located in Ocean County, New Jersey, focuses a portion of her practice on estate planning, guardianships, Powers of Attorney, Wills, Special Needs Trusts and probate litigation in Ocean and Monmouth Counties. ​ Contact Pamela at 732.363.0666 or psnyder@bathweg.com.
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READ PART 3 of What Is Guardianship In New Jersey And How Does It Work