Plaintiff’s Claim against School District based upon Sexual Abuse by Teacher Barred Due to Failure to Timely File Tort Claims Notice

Plaintiff (“J.D.”) alleged that his high school teacher sexually abused him between 1983 and 1987. J.D. began having panic attacks in June 2013, which led to his hospitalization. He was diagnosed with panic disorder and either major depressive disorder or bipolar disorder. In May 2015, in psychotherapy, he disclosed his high school teacher’s relationship and his anger for the first time. In April 2016, plaintiff filed a motion for leave to file a late notice of claim against his high school teacher and the school district. In J.D. v. D.R., 2017 N.J. Super. Unpub. LEXIS 2528 (App. Div. Oct. 6, 2017), the issue was whether plaintiff demonstrated extraordinary circumstances to justify the late filing.

Pursuant to N.J.S.A. 59:8-8, to pursue a tort claim against a public entity, a plaintiff must file a notice of his claim within 90 days of its accrual. If the plaintiff fails to timely file his notice within the 90 days, the plaintiff may seek leave with the court up to one year after the accrual of his claim if he can provide sufficient reasons constituting extraordinary circumstances for his failure to file a notice of claim within this statutory time period. (N.J.S.A. 59:8-9.)

Plaintiff claimed that his psychological impairments constituted sufficient reasons to excuse the late filing. The trial court judge found this reason inadequate to meet the “extraordinary circumstances” requirement and denied his request to file a late notice of tort claim.

The Appellate Division upheld the trial court’s decision to deny the motion for leave to file a late notice of tort claim. The “extraordinary circumstances” standard was added by the Legislature in 1994 to replace the “fairly permissive standard” to this “more demanding” standard. The plaintiff’s reasons for not filing a timely notice of claim were insufficient to overcome this demanding standard. Thus, the Appellate Division found that the trial court judge correctly denied his motion.

Paid Break or Flex Time?

When is an employee entitled to be paid for taking a break at work? That was the question that the Third Circuit Court of Appeals had to address in the recent case of Secretary United States Department of Labor v. American Future Systems, Inc., No. 16-2685 (October 13, 2017). In this case, the Third Circuit had to decide whether employees of the defendant company were entitled under the Fair Labor Standards Act (“FLSA”) to be paid for periods of time of 20 minutes or less when they were relieved of all work-related duties. In a significant victory for employees, the Third Circuit said that these employees were indeed entitled to such wage payments.

Defendant employed sales representatives who were paid a base hourly wage and qualified for bonuses and additional compensation based upon work they performed while logged on to their work computers. In 2009, defendant eliminated its existing policy allowing such sales reps to take two 15 minute breaks per day. Under the company’s new policy, employees were allowed to determine the frequency, length and time and duration of the breaks. While employees could take breaks for any reason, defendant only paid such sales rep employees for breaks lasting under 90 seconds.

The United States Secretary of Labor (“DOL”) brought suit against the defendant claiming the lack of payment for any breaks that were less than 20 minutes long violated the FLSA. This was based upon the DOL’s long-standing bright line rule that all breaks taken by employees for under 20 minutes required payment under the FLSA. The defendant attempted to justify its practice of nonpayment by claiming that the time that the sales reps stopped working was not a break in the legal sense but “flex time.” The District Court rejected this distinction, and gave deference to the DOL’s interpretation of what was required by the FLSA in its long-standing rule requiring payment for all breaks under 20 minutes long. The Third Circuit also ultimately rejected defendant’s argument as well, and likewise enforced the DOL’s long-standing rule on the payment requirement for breaks under 20 minutes.

The Third Circuit’s decision is a friendly reminder about the dangers of not knowing all the nuances of wage and hour legal requirements. The DOL has issued a number of regulations that provide guidance to employers on how that agency interprets the wage and hour payment requirements of the FLSA, with one of those being the 20 minute break compensation rule at issue in this case. In this case, not only did this employer have to pay for the actual wages required for all uncompensated employee 20 minute break periods, but the court also awarded liquidated damages. Liquidated damages consist of payment of double the amount of the wages that are owed. Before incurring such costly expenses, it is best to make sure that all novel compensation policies are legally sound and will withstand any possible future scrutiny from the DOL.

Capehart Scatchard Attorneys Address Charter School Professionals

Capehart Scatchard school lawyers, Sanmathi Dev and Joseph F. Betley recently spoke at the New Jersey Charter School Conference in  Newark, New Jersey.  Ms. Dev and Mr. Betley spoke on the topic of “Do’s and Don’ts of Special Education Law.” Their presentation focused on common mistakes made by charter school staff in the area of special education.

Ms. Dev concentrates her practice on school law and labor and employment law.  She is experienced in representing, advising, and defending boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline and civil rights.  She leads Capehart Scatchard’s School Law Blog, which focuses on cases, court decisions, and current developments affecting education law in the state of New Jersey.

Mr. Betley concentrates his practice on defense labor and employment law, civil rights and school law matters, including special education issues.  He is a member of the National School Boards Association, the New Jersey School Boards Association, the New Jersey State, and Burlington County Bar Associations.  He is also an associate counsel for the New Jersey League of Municipalities.

Capehart Scatchard’s Sanmathi Dev Named A Diverse Attorney Of The Year

Capehart Scatchard Shareholder, Sanmathi (Sanu) Dev was recently selected by the New Jersey Law Journal as a 2017 Diverse Attorney of the Year.  Ms. Dev is one of fifteen attorneys selected to the list, which honors excellence among diverse attorneys in New Jersey.  The New Jersey Law Journal will be featuring the accomplishments of all the honorees in a special magazine set to be published in November.

A Hamilton resident, Ms. Dev concentrates her practice on school law and labor and employment law.  She is experienced in representing, advising, and defending boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline and civil rights.  She leads Capehart Scatchard’s School Law Blog, which focuses on cases, court decisions, and current developments affecting education law in the state of New Jersey.  Ms. Dev is the Chair of the Firm’s Diversity and Inclusion Committee, which seeks to facilitate the Firm’s efforts to achieve and maintain a diverse and inclusive workplace at every level of our organization.  She received her law degree from Rutgers Law School at Camden and her B.A. degree in Economics and International Relations, with honors, from Boston University.

Capehart Scatchard Shareholder Presents Seminar to MaidenRe Insurance

On September 29, 2017, Christopher J. Hoare, Esq. presented a seminar at Capehart Scatchard entitled, “Trucking Liability Overview and Claims Update 2017” to 27 claims adjustors and underwriters from the trucking insurance company MaidenRe Insurance. The seminar covered the current state of the trucking industry, new regulations for CDL driver training, new requirements for mandatory use of electronic logging devices during trips, the benefits of using inward facing dashboard cameras, and additional industry related news. The presentation aimed to inform insurers of what precautions they should take when prepping accident reports for a case, what legal defenses would be advantageous in specific scenarios, as well as educate them on current litigation trends affecting the trucking industry. They learned which parts of accidents reports are admissible vs. inadmissible in court, and they were given beneficial tips to prepare for cases in “high-risk” states (states that pay out large awards for minor injuries).