Kingston Law Group’s child custody practice has helped hundreds of parents and children over the years. These cases can be highly emotional and stressful, but they need not be. No matter which side of the issue you’re on, we can help. Call us at 609-683-7400 or contact us online to learn more.

What are a Child’s Best Interests?

The primary goal of a custody decision is to further a child’s best interests. Issues a court should consider in deciding who gets what type of custody rights include the following:

• The parents’ ability to agree, communicate, and cooperate in matters concerning the child
• A parent’s willingness to accept custody
• Any history of unwillingness to allow parenting time with the other parent that’s not based on substantiated evidence of abuse
• Interactions with and the relationships of the child with their parents and siblings
• A history of domestic violence, if any
• The child’s safety and that of a parent from physical abuse by the other parent
• The preference of the child who is of sufficient age and capacity to form an intelligent opinion
• The child’s needs
• The home environment’s stability
• The quality and continuity of the child’s education
• The parents’ fitness
• The geographical proximity of the parents’ homes
• The quantity and quality of the time a parent spent with the child before or after a separation
• The parents’ job responsibilities
• The number and age of children

This checklist is how the NJ Legislature spelled out how a judge should consider a child’s best interests.

What is a Guardian Ad Litem?

Under Rule 5:8B of the state’s court system:

• In cases where custody or parenting time/visitation is at issue, a guardian ad litem may be appointed by a court order to represent the best interests of the child or children if the judge feels the circumstances warrant the appointment
• The guardian ad litem’s services shall be for the court and on the child’s behalf
• A judge may appoint a GAL on their own or at the request of either or both parents
• The GAL files a written report with the court containing factual findings, custody recommendations, and their reasons
• A GAL is available to testify and could be subject to cross-examination

A GAL’s duties can include, but aren’t limited to, the following:

• Interviewing the parents and children
• Interviewing others with relevant information
• Obtaining relevant documentary evidence
• Conferring with the parties’ attorneys
• Conferring with the court, after giving notice to the parties’ attorneys
• Obtaining help from independent experts, with court approval
• Getting help from a lawyer for the child, with court approval
• Other matters, as the GAL may request, with court approval

The notes from this Rule state:

• The GAL is an independent fact finder, investigator, and evaluator on what will advance the child’s best interests
• A guardian ad litem may be an attorney, a social worker, a mental health professional, or another appropriate person
• A GAL would be appointed if their purpose is to perform an independent investigation and fact-finding
• If the GAL’s primary function is to act as an expert, the court should appoint a GAL who has the appropriate expertise

The GAL keeps the court and the parties updated on their progress. The final report will be the subject of a court hearing. Judges usually give a lot of weight to the GAL’s findings and recommendations when rendering a custody decision.

The parents normally pay the cost of the GAL’s services. Payment may be evenly split or based on the parents’ ability to pay.

Can a Parent Object to a GAL’s Appointment?

A parent could claim:

• There’s no need to appoint a Guardian Ad Litem
• The person nominated isn’t qualified
• The nominee is biased for or against a parent
• There’s a conflict of interest between the nominee and one or both of the parties

The chances of a successful challenge would depend on the evidence and the parent’s reasoning.

Can a Judge Appoint Others in a Custody Case?

Court rules also allow for a judge to appoint an attorney to represent the child’s interests (Rule 5:8A) and a special advocate for a child (Rule 5:8C). These roles are not the same as a GAL.

• The court-appointed lawyer represents the child. The appointment should be made if the judge decides that the parties’ attorneys don’t sufficiently protect the child’s best interests
• A volunteer Court Appointed Special Advocate (CASA) would act for the court to undertake certain activities to further the child’s interests. They’re not to replace or interfere with a GAL or a court-appointed lawyer for the child

A judge can also appoint a child psychologist to determine the child’s best interests. Given the importance of recognizing those interests, the child’s legal rights, and a judge’s desire to avoid an appeal of a decision because they hadn’t taken enough effort to protect those rights and interests, these appointments are not unusual.

How Should a Parent Approach a GAL and Their Work?

A GAL is neither a friend you can count on nor an enemy to fight. Their job is to be independent and focus on your child’s best interests. They’re not interested in your life story, nor do they want to hear your critiques of the other parent. Work with your attorney on communicating with the GAL and provide them with a time to see you and your home.

Things to consider include the following:

• Return calls and emails promptly, provide requested documents, and make yourself available for interviews. Obstruction or delay reflects poorly on you.
• Your credibility matters. GALs are experienced at detecting inconsistencies
• Exaggerating concerns or downplaying your own shortcomings can backfire
• What you say should be framed around your child’s well-being, not the other parent’s deficiencies. Excessive negativity about the other parent shows poor co-parenting ability
• Think through what you want the guardian ad litem to understand about your relationship with your child and your home environment. Before meeting, you may want to outline important issues to bring up, but don’t write yourself a script or rehearse answers
• Before a home visit, ensure your home is safe, organized, and child-appropriate
• Have relevant documentation ready (school records, medical records, communication logs) while not overwhelming the GAL with unsolicited material.
• If you have serious, legitimate concerns about the other parent, raise them calmly and with specific, factual examples, not emotional accusations
• Let the GAL interview your child without coaching them. You need to explain what’s going on, but don’t rehearse responses

Put yourself in the GAL’s shoes. To do your job, what would you ask? What would you want to see? A guardian ad litem understands the importance of this meeting and your conversation, as well as the stress you’re under. If a home visit isn’t picture perfect or what you said wasn’t a textbook response, don’t beat yourself up over it.

Contact Kingston Law Group for Help with Child Custody Matters

For help with child custody disputes, call us at 609-683-7400 to arrange a near-term, reduced-fee initial consultation. We will listen to your facts, discuss the law, and advise you of your options. We accept credit cards and offer appointments from 9 a.m. to 5:30 p.m., Monday through Friday. We also have pre-arranged evening appointments. Contact us today.  You will be glad you did!!

The post A Guardian Ad Litem Helps Determine a Child’s Best Interests first appeared on Kingston NJ Law Group.

The Kingston Law Group helps employees protect and enforce their rights under state and federal laws. If you have any questions or concerns about an issue with your employer, call us at 609-683-7400 so we can discuss the situation and how we may be able to help.

What is the FLSA?

The FLSA is a federal law that establishes a national minimum wage, recordkeeping, overtime pay, and youth employment standards for private employees and those in federal, state, and local governments. For these standards to apply, the person in question must be an employee under the statute.

Someone enforcing the FLSA must consider the facts of each situation. As interpreted by federal courts, the way to determine if one is an employee covered by the FLSA or an independent contractor who is not is to evaluate the following factors:

• How much the services rendered are an integral part of the principal’s business
• How permanent is the relationship between the parties
• How much the alleged contractor invested in facilities and equipment
• The nature and degree of the principal’s control
• The alleged contractor’s exposure to profit and loss
• How much initiative, judgment, or foresight in competition with others is required for the claimed independent contractor’s success
• The degree of independent business operation and organization

What’s irrelevant to deciding whether the person’s an employee includes the following:

• Where the work is performed
• Whether or not there’s a formal employment contract
• Whether a state or local government licenses the worker

Some things that affect a worker’s status include the following:

• Employee: Control over the worker to the point they can’t work for another business, informally or through an explicit agreement
• Employee: A company requires a worker to agree to a fixed term of work, not work for a competitor after that time ends, or face restrictions or sanctions for leaving a job to seek other opportunities
• Employee: If a business makes investments into equipment and tools and provides them to a worker, they may rely on the business to supply them to perform their services, making it harder for them to seek other opportunities, and they will be more dependent on the business for an income
• Either: Whether the worker has the skills needed to find and manage different work projects that independent contractors typically handle, or task-specific, specialized skills that would normally be part of the employer’s operations. The person is more likely to be an employee if they rely on the employer to give them the necessary skills to perform a job
• Independent contractor: The opportunities for profit or loss typically arise when the worker receives additional compensation for using initiative, judgment, or foresight, not just greater efficiency. They can renegotiate compensation during the working relationship, or risk money invested in the job or its outcome
• Employee: The person’s services are integrated into a business and part of its primary purpose

There’s no “hard and fast” rule that may definitively decide you’re legally an employee misclassified as an independent contractor and being denied wages and benefits that you’re owed. It’s more of a checklist that may cut either way, depending on the facts.

What was the Biden Administration’s Position on Defining an Employee?

A Biden-era rule covering how a person would be determined as an employee, as opposed to being misclassified as an independent contractor under the FLSA, included a focus on whether, as an “economic reality,” a worker is dependent on a possible employer for work, not income (which would make them an employee), or is self-employed and in business for themself (making them an independent contractor).

The 2024 rule imposed what some interpreted as a more worker-friendly standard for independent contractor classification than the guidance created by the first Trump administration. The rule faced legal challenges from business groups. They claimed the rule needlessly increased costs, reduced employer flexibility, and created legal uncertainty. Though these plaintiffs tried, no court issued an order blocking this rule.

What Did the Trump Administration Do About the Rule?

The federal Department of Labor (which enforces the FLSA) issued Field Assistance Bulletin 2025-1 last year. It instructed its staff to stop applying the 2024 rule’s analysis when deciding whether someone is an independent contractor or employee under the FLSA. Instead, if an employer had not paid back wages or civil money penalties as of May 1, 2025, staff were told to analyze the person’s employment status under the framework listed in the DOL’s Fact Sheet #13, published in 2008, as interpreted by the agency’s Opinion Letter FLSA 2019-6.

The standard, as stated in Fact Sheet #13, is more employer-friendly than the Biden administration’s 2024 rule, and there’s no substantial change for workers and employers for several reasons, including the following:

• Many states’ wage and hour laws’ employment tests differ from federal law, including New Jersey’s (which is more worker-friendly).
• The DOL’s guidance was described as a temporary measure, but months have passed, and they haven’t offered anything new.
• The DOL under President Trump’s first administration created its own rule on this issue, but his second administration isn’t going back to that guidance. It’s reaching back to one created when Barack Obama was President

At the federal level, given the Trump administration’s actions, this area of law is in flux. Though there are some general rules of thumb, this is a very fact-specific legal topic, so it’s difficult to give you valid advice without a thorough conversation. If you have questions or concerns about being paid and how much, schedule a consultation with us.

Has Your Employer Treated You Illegally in Some Way?

If you believe your employer is violating your rights because it’s not treating and paying you like an employee? If so, we will listen to your facts, explain the law, and suggest right and reasonable approaches for relief.

Kingston Law Group provides workers with compassionate counsel and tough advocacy. We are ready to help you, your loved ones, and your friends. Call us at +1-609-683-7400 or contact us online to schedule a near-term initial consultation at a reduced hourly rate. Call or write us today. You’ll be glad you did.

The post Federal Law Definition of Employee Takes a Couple of Steps Backward first appeared on Kingston NJ Law Group.

Kingston Law Group’s domestic abuse practice has helped hundreds of people over the years. These are highly stressful and possibly violent situations that must be taken seriously. No matter which side of the issue you’re on, we can help. Call us at 609-683-7400 or contact us online to learn more.

What is New Jersey’s Victims’ Assistance and Survivor Protection Act (VASPA)?

VASPA provides civil restraining orders for victims and survivors of sexual violence, stalking, and cyber harassment – in cases where entry of a Domestic Violence Restraining Order may be unavailable for legal/jurisdictional reasons.  In addition to possible criminal law charges and protections, a VASPA protective order may provide civil mitigation of the following acts:

• Nonconsensual sexual contact or sexual penetration
• Lewdness
• Stalking
• Cyber harassment

A VASPA order prohibits a defendant from further committing these acts and:

• Contacting the victim directly or through a third party
• Going to the victim’s residence, school, or workplace
• Other relief a court deems appropriate

If a VASPA order is violated, there are civil and criminal penalties, which may include the following:

• Arrest
• Fines
• Probation
• Jail time

A judge may also impose other relief that’s deemed appropriate. Those who may apply for a VASPA order include the following:

• Victims and survivors who are 18 years old or older
• A parent or guardian on behalf of someone younger than 18 years old who has a mental disorder or defect, or developmental disability

These orders are different from domestic violence restraining orders (DVROs). VASPA orders may or may not apply to individuals with romantic, marital, family, or parenting relationships, while DVROs do. A VASPA order could be granted to someone who may not qualify for a DVRO.

Angry Spouse Bangs on Door Early in the Morning, Sends Texts People Wouldn’t Normally Receive

The Appellate Division recently ruled in a case involving a wife (R.S. in the decision), her husband, and a woman (A.C.) in a romantic relationship with the husband when the parties were divorcing. On an early November 2024 morning, R.S. went to A.C.’s house while the husband was present. She banged on a door and window, yelling at A.C. to meet her outside. The husband left the house, tried to talk her into leaving, but she stayed, and he left. A.C. ignored R.S.’s words and actions.

The two had never met, but while “making a scene” outside the house, R.S. made personal statements about A.C., who called the police. When the police arrived, they spoke to R.S., who left. A.C. asked them for a domestic violence restraining order, but was told she didn’t qualify.

At about 2:00 A.M., R.S. started texting her husband and A.C. Her texts included claims that there was no need to call the police and allegations that:

• Her husband and A.C. maintain fake public personas
• Their relationship started before the divorce
• She was going to contact A.C.’s employer and tell them about the relationship

R.S. then forwarded a phone message A.C. left for the husband.  R.S.’s texts included graphic descriptions of the sex she could have with her husband and the statement “ITS ON!”, which A.C. interpreted as a threat. R.S. mentioned A.C.’s husband and children and she went to see them in person.

At a hearing where A.C. sought a final protective order (FPO), she testified, “This is very concerning. I do not want this type of erratic behavior and safety risk around my children…It’s troubling. It’s dangerous.”

R.S. admitted she learned of her addresses through online research, and visited those addresses. She stated that she learned of A.C.’s address online and about A.C. after speaking with her husband. R.S. stated she didn’t plan on physically going to A.C.’s workplace, but was planning to inform A.C.’s work of the affair.

The trial judge decided that R.S. had not stalked A.C. and ruled in R.S.’s favor on the following issues:

• The text communications threatening to contact the employer were cyber-harassment under New Jersey law
• There was a threat to A.C.’s property interests
• The sexual description by R.S., the time of the 2:00 am texts, and R.S.’s visits to A.C.’s husband and children were meant to harass A.C.

R.S. appealed the decision.

Appeals Court Rules R.S. Didn’t Cross Legal Lines and Dismissed FPO

The Appellate Court ruled that the alleged language and behavior weren’t covered by VASPA and dismissed the trial court’s Order. R.S. claimed text messages aren’t cyberstalking under the law, because they were based on the telephone system, not the internet. The court disagreed, stating that such messages could be communicated over the internet and that such a finding was consistent with the law’s broad purpose of protecting victims. The court also stated that R.S. by implicating A.C.’s job potentially infringed on her property rights.

However, those two plaintiff high points were drowned out by the rest of the higher court’s decisions:

• S.’s statement about possible sex acts with her husband wasn’t lewd under the statute because they didn’t include images of genitalia to arouse or gratify someone
• The threat to contact A.C.’s employer doesn’t constitute cyber-stalking because she didn’t threaten to cause injury or harm, make false statements, or commit a crime, which could affect the plaintiff’s job if done

As repulsive and angry as R.S.’ words and actions may have been, they didn’t cross the line into what would trigger VASPA action. But maintaining control should always be your goal, even in the most heated domestic situations.

If you’re involved in a domestic dispute, and what you say or do is reprehensible but not so bad that one order or another will be issued against you, those words might still come back to haunt you. They may be used as evidence of your inability to control yourself and how over-emotional you can become in a way that could hurt your interests, including child custody and parenting time.

Contact Kingston Law Group for Help with Restraining Orders

Please contact us at 609-683-7400 toll-free to arrange a consultation. We accept credit cards and offer general appointments from 9 a.m. to 5:30 p.m., Monday to Friday, or pre-arranged evening appointment times.

The post New Jersey Appellate Division: People Say Nasty Things to or About You, but You Still May Not Get a Protective Order first appeared on Kingston NJ Law Group.

New Jersey’s child custody laws are parent-neutral. An individual judge may feel mothers are better parents, but we don’t see improper bias by judges assigned to our cases overpowering the evidence. Though judges have a lot of discretion in deciding custody cases, their decisions must be grounded in facts that show their ruling is in a child’s best interests.

Kingston Law Group’s child custody practice has helped thousands of parents and children over 4 and a half decades. Child custody disputes can be highly stressful and emotional, but they don’t have to be that way.  Call us at 609-683-7400 or contact us online to learn more.

What is Child Custody?

Child custody under New Jersey law refers to a parent’s rights and responsibilities regarding their child’s care, decision-making, and physical time together. There are two types of custody arrangements, including:

• Legal Custody: The ability to decide critical matters impacting your child’s welfare, education, healthcare, and religion
• Physical Custody: Deciding where your child lives on a daily basis and which parent provides primary care

Custody may be joint (shared by both parents) or sole (one parent makes these decisions), and different combinations are possible. Parents usually share legal custody. Physical custody may also be shared, or one may have primary physical custody. Generally, judges favor custody arrangements where both parents remain actively involved in the child’s life.

How is Child Custody Decided in New Jersey?

The most crucial issue is what’s in the child’s best interests. Parents may disagree on what’s required to ensure those interests. They can work out their disagreements and create a written agreement. If so, a judge reviews and usually approves it.

They could reject it if the judge feels the child’s best interests aren’t being served. The parents could alter the agreement or litigate the issue. The parents would also need to go to trial if they can’t reach an agreement. If the parties can’t negotiate a resolution, mediation may help them end the conflict.

State law provides a list of issues for judges to consider when determining what would be in the child’s best interests. They include the following:

• The parents’ ability to communicate, agree, and cooperate in parenting matters
• The parents’ willingness to accept custody and their history of reluctance or refusal to allow the other parent to have time with the child that’s not based on substantiated abuse claims
• The interactions and relationships of the child with their parents and siblings
• Any history of domestic violence
• The safety of either parent and the child from physical abuse by the other parent
• The child’s preference, if they’re old and mature enough and have the mental capacity to reason and form an intelligent decision
• The child’s needs
• The offered home environment’s stability
• The quality and continuity of the child’s education
• The parents’ fitness to have custody rights
• The physical proximity of the parents’ homes
• The quantity and quality of the time the parent spent with the child before or after the parents’ separation
• The parents’ employment responsibilities
• The age and number of children

A judge is free to ignore factors that aren’t an issue in a case and bring up factors not included in state law if the judge feels they’re relevant.

Does New Jersey Law Favor Mothers in Custody Disputes?

There’s no explicit language in state law favoring or discouraging a custody rights award to a man or woman. State law includes the following language:

The Legislature finds and declares that it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy…In any proceeding involving the custody of a minor child, the rights of both parents shall be equal…

If one parent gets the custody rights they seek, and the other does not, it should be the result of well-reasoned judgment on how a child’s needs can be best met based on the case’s evidence. A court ruling based on a parent’s sex, not on the child’s best interests, could be appealed and overturned.

Should New Jersey Law State That Equally Shared Child Custody is the Favored Approach?

Some fathers who didn’t get the custody rights they sought feel the legal system discriminates against them because of their sex. Traditionally and stereotypically, women are seen as caregivers and nurturers, while fathers are more distant, less connected to their kids, and spend most of their time and energy working and providing the family with income. That may be the case with some families, but no one, especially a judge, should assume that’s the case in a particular matter.

A recent Wall Street Journal article looked at Kentucky and other states that changed their laws to state that equally shared child custody was the preferred situation, but that outcome could change if a parent could show by a preponderance of evidence (it’s more likely than not) that it wouldn’t be in the child’s best interests.

The National Parents Organization (NPO), an advocacy group formerly known as Fathers and Families, lobbies for this change, arguing that it would help ensure fathers get equal time with their kids.  The NPO rates states based on how it believes their laws explicitly equalize parents’ ability to obtain custody rights. Five states got A’s. New Jersey and 14 others got D’s.

Eight years ago, Kentucky was the first state to pass a law making equally shared custody the default arrangement in divorces and separations. Four other states (Arkansas, West Virginia, Florida, and Missouri) have passed similar legislation. The NPO claims that about 20 other state legislatures are considering or close to passing similar laws.

After the law changed in Kentucky, the state’s divorce rate decreased by 25% (it went down 18% nationwide). Some claim that because of the law, more parents with marital problems are deciding not to divorce, since they’ll probably both care for their kids if they do, so they work to improve their relationship. That would be a positive, but staying together is a negative if a parent remains in an abusive marital relationship to try to protect their children, who could be alone with the perpetrator if they divorce.

Kingston Law Group represents fathers and mothers in divorce and custody matters. Who cares for a child, and which kind of care the child receives from whom, should be based on the child’s best interests. We work to ensure our clients aren’t subject to any form of unlawful bias when advocating for their children. Our legal system and statutes are imperfect, but New Jersey law should focus on ensuring a child’s best interests are met, not on providing a particular custody arrangement.

Contact Kingston Law Group for Help with Child Custody Matters

For help with child custody disputes, call us at 609-683-7400 to arrange a near-term, reduced-fee initial consultation. We will listen to your facts, discuss the law, and advise you of your options. We accept credit cards and offer appointments from 9 a.m. to 5:30 p.m., Monday through Friday. We also have pre-arranged evening appointments. Contact us today.  You will be glad you did!!

The post Is it More Difficult for Jersey Fathers to Get Child Custody? first appeared on Kingston NJ Law Group.

The Kingston Law Group helps employees protect and enforce their rights under state and federal laws. If you have any questions or concerns about an issue with your employer, call us at 609-683-7400 so we can discuss the situation and how we may be able to help.

What Is a Noncompete Agreement?

A noncompete agreement is a contract between your employer and you that restricts your ability to:

• Work (usually for a competitor) or start a competing business
• For a given time period
• Usually also covering a geographic area
• After leaving the company
• Regardless of your reasons for departure

Employers should use these agreements to protect their legitimate interests, such as trade secrets, confidential information, and customer relationships. Your employer might prevent you from working for a rival company or starting your own. The employer could claim it would be unfair if you leveraged the knowledge you gained and the contacts you developed during your time with the company to their disadvantage.

New Jersey courts recognize the anti-competitive nature of non-competes and only will uphold/enforce them if their terms are reasonable.

Recent Federal Developments for Noncompete Agreements

The Trump administration recently dropped its defense of a Biden-era Federal Trade Commission (FTC) rule that would’ve banned most noncompete agreements. In 2024, the FTC published a new non-compete rule that would’ve prohibited new non-compete agreements and made most existing non-competes unenforceable, according to the Cornell Journal of Law and Public Policy.

The FTC’s majority at the time decided that the federal law empowering the Agency to prevent unfair methods of competition, the Federal Trade Commission Act (FTCA), covered noncompete agreements. They argued that these contracts illegally restricted competition for job candidates, reducing their wages. The rule faced legal challenges, the agency lost in federal trial courts, and the FTC appealed those decisions.

After Donald Trump won his second election, he appointed a new majority to the Board that controls the agency. They reversed the FTC’s support eviscerating most non-competes, and the Department of Justice withdrew its appeal of lower court rulings in employers’ favor, reports Reuters.

Are Noncompete Agreements Enforceable in New Jersey?

Whether or not there’s a federal law supporting your claim that a noncompete agreement can’t be enforced against you, New Jersey law might decide the issue. New Jersey courts use state law to interpret whether they are valid, and if so, how they would apply in your situation. They use a three-part test to determine enforceability:

• The employer must seek to protect interests like trade secrets, confidential information, or customer relationships
• The agreement cannot impose an unreasonable hardship on your ability to earn a living. A court would consider factors such as why you left the job and whether you can find comparable work in your field with the restrictions in place
• The agreement must not harm the broader public interest

Generally, the enforceability of a New Jersey noncompete agreement depends on whether its terms are interpreted as reasonable. That would be judged on the following basis:

• Courts typically uphold agreements with a duration of six months to two years. The longer the agreement applies, the greater the chance it’ll be seen as excessive and unenforceable
• The restricted geographic area should be limited. The employer may be a local business with limited reach or operate worldwide. How this would be considered would be up to the court
• The agreement must be narrowly tailored. Restricting you from working for direct competitors in your specific role may be reasonable, while preventing you from working anywhere in your industry likely is not

The legality of a noncompete agreement depends on its terms. Unless it contains clearly extreme prohibitions, the agreement’s language, as applied to your situation, would need to be considered.

The key question will be: if federal law opposes limitations on non-competes, do the feds “occupy the field” and preclude State and local reforms of such agreements?  If the feds are deemed to “occupy the field”, then countervailing State or local policies will not prevail.  If they aren’t, then State law will become highly relevant to the outcomes.

What Should I Do If I’m Asked to Sign a Noncompete Agreement or Have Already Done So?

If you’re presented with a noncompete agreement:

• Read it carefully. Understand exactly what activities are restricted, for how long, and in what geographic area
• Consider the impact. How would these restrictions affect your career options if you left the company?
• The employer may be willing to change the proposed terms in their draft agreement. You may be able to limit the duration, geographic scope, or restricted activities through negotiations

Contact us before signing any contract with your employer or potential employer, especially one containing noncompete language. What seems reasonable to you may have serious long-term consequences for your career. It may be much easier and cheaper to negotiate changes in the agreement, or to refuse to sign it, than to agree to it and then challenge the contract.

If you’re currently subject to a noncompete and considering leaving your job, contact our office so we can review it. What you signed may or may not be legally binding. Your employer may also be open to negotiating the terms of your departure, preventing a legal battle. They may have given you a form contract and may not be overly concerned about the language that could hold you back.

Are You Concerned About Your Ability to Find Another Job?

Do you have questions or concerns about how a current or proposed noncompete agreement may prevent you from working elsewhere? If so, we will listen to your facts, explain the law, and suggest right and reasonable approaches for relief.

Kingston Law Group provides compassionate counsel and tough advocacy for employees. We are ready to help you, your loved ones, and your friends. Call us at +1-609-683-7400 or contact us online to schedule a near-term initial consultation at a reduced hourly rate. Call or write us today. You’ll be glad you did.

The post Trump Administration Supports Employers’ Noncompete Agreements and Reverses Biden-Era Restrictions on Employers’ Rights first appeared on Kingston NJ Law Group.

Divorce is one of life’s most emotionally complex experiences, and every couple brings a unique mix of personalities, expectations, and communication styles to the process. While there’s no single explanation why some relationships thrive and others fail, many cultures have traditions that offer insights into personality and compatibility. One of the oldest and most enduring is the Chinese zodiac, a system that links birth years to 12 symbolic animals and five natural elements.

Kingston Law Group’s divorce practice has helped thousands of clients begin anew. No matter what caused your relationship to end, Kingston Law Group will zealously assert and defend your legal rights. We will put in the work required to protect your short- and long-term interests – as well as your children’s. Call us at 609-683-7400 or contact us online to learn more.

The Chinese zodiac can be a fascinating way to try to understand human nature. For some, it provides cultural and emotional context that may influence how couples approach major life events, including marriage and divorce.

What is the Chinese Zodiac System?

The Chinese zodiac is a 12-year cycle, with each year represented by an animal sign: Rat, Ox, Tiger, Rabbit, Dragon, Snake, Horse, Goat, Monkey, Rooster, Dog, and Pig.

Your zodiac sign is determined by your year of birth, following the traditional Chinese lunar calendar. For example, 2020 was the Year of the Rat, 2021 the Year of the Ox, and 2025 will be the Year of the Snake. The zodiac also incorporates five elements: wood, fire, earth, metal, and water. They rotate along with the animal signs.

Each element adds another layer of personality influence. A “wood dragon” may be creative and growth-oriented, while a “metal dragon” might be more ambitious and determined.

These animal and element combinations create a framework for understanding how people think, communicate, and respond to stress. These are all qualities that can deeply affect how people approach relationships and conflicts.

How Might Zodiac Signs Influence Divorce Tendencies?

While the zodiac isn’t seen as destiny, it may reveal personal tendencies that could contribute to marital challenges. Here’s how each sign’s personality traits might play a role in relationship dynamics and divorce:

• Rats are clever, resourceful, and adaptable. They tend to be charming but can also be anxious and secretive. In relationships, they may struggle with trust issues or overthinking their partner’s motives. During divorce, a Rat may be strategic—focused on protecting assets and securing stability
• Patient and dependable, Oxen are grounded and loyal. They value long-term commitment but can be stubborn and slow to compromise. When a marriage ends, Ox-born individuals may find it emotionally difficult to accept change, often prolonging the process because they prefer predictability
• Tigers are bold, passionate, and independent. Their charisma attracts others, but their strong will can lead to power struggles in a relationship. When divorcing, Tigers may want to take charge, sometimes leading to confrontational or high-conflict separations unless guided toward compromise
• Rabbits are gentle, empathetic, and peace-loving. They dislike confrontation and often avoid conflict until tensions become unbearable. In divorce, they may seek mediation or amicable settlements rather than litigation, but they can also be overly accommodating to keep the peace
• Dragons are confident, ambitious, and natural leaders. They have high expectations in relationships and may become frustrated if their partner doesn’t share their drive. During divorce, Dragons tend to be assertive, seeking control over decisions and outcomes. Their pride can make compromise difficult
• Snakes are intuitive, elegant, and private. They value emotional connection but can become jealous or suspicious if they feel betrayed. In divorce, snakes may keep their emotions hidden, focusing instead on negotiation strategy and long-term self-protection
• Energetic and freedom-loving, horses crave excitement and independence. They may struggle in relationships that feel restrictive or routine. A horse divorce can bring a sense of liberation, though they may act impulsively during the process, needing careful legal and emotional guidance
• Goats are artistic, sensitive, and kind-hearted. They are generous partners but they can become emotionally dependent or indecisive. When facing divorce, goats often feel overwhelmed by practical details and may benefit from patient, empathetic legal counsel
• Monkeys are intelligent, curious, and social. They love variety and stimulation, which can make long-term relationships challenging if they become bored. In divorce, monkeys often approach negotiations creatively but may lose focus unless the process is structured
• Practical and detail-oriented, roosters are perfectionists who value honesty and order. They can be critical or rigid in relationships. During divorce, roosters may fixate on fairness and accuracy, which can either streamline the process or stall it if they become overly combative
• Loyal, honest, and compassionate, dogs are protective partners who crave emotional security. When betrayed or disappointed, however, they can become deeply resentful. In divorce, dogs may prioritize fairness and try to shield children or loved ones from conflict
• Pigs are warm, generous, and sincere. They value harmony and dislike deceit, sometimes to the point of naivety. During divorce, they may trust too easily or agree to unfavorable terms to avoid confrontation. Compassionate legal guidance can help them balance kindness with self-protection

Under the Chinese zodiac system, this is only the beginning of the potential influences on a spouse.

How Do the Five Elements Come Into Play?

Each zodiac sign is also influenced by five elements, which rotate every two years and further shape personality and compatibility

• Wood represents growth, creativity, and compassion. Wood signs often seek harmony but may struggle with boundaries in relationships
• Fire brings passion, confidence, and spontaneity. Fire signs can be exciting partners but may have volatile tempers
• Earth reflects stability, responsibility, and loyalty. Earth signs are dependable but may resist change, making divorce emotionally difficult
• Metal embodies strength, determination, and resilience. Metal signs often approach divorce with focus and discipline, but they may be emotionally distant
• Water signifies intuition, empathy, and adaptability. Water signs are emotionally aware and tend to prioritize peaceful resolutions, though they can be overly influenced by others’ emotions

The combination of animal and element creates a personality profile. A fire tiger may be dynamic but confrontational, while a water rabbit might avoid conflict even at personal cost. In divorce proceedings, these tendencies can influence negotiation styles, communication, and emotional recovery.

Of course, no astrological system can determine the outcome of a relationship or legal case. However, acknowledging cultural beliefs respectfully can help attorneys build trust and offer more personalized guidance. Recognizing that a client born in the Year of the Ox might resist rapid change or that a Tiger may prefer a decisive legal strategy could make attorney representation and advocacy more effective.

The Chinese zodiac is more than a horoscope. It’s a centuries-old lens on personality, compatibility, and human behavior. Whether one sees it as cultural wisdom or symbolic storytelling, the Chinese Zodiac can shed light on emotional and behavioral patterns that affect relationships. If you’re navigating through a divorce, understanding personality dynamics, zodiac-inspired or otherwise, will empower you to approach the process with clarity and compassion.

The post How the Chinese Zodiac May Influence Your Relationships, Divorce, and Your Lawyer’s Advocacy first appeared on Kingston NJ Law Group.

Depending on the circumstances, a controversial media post may give your employer grounds to fire you without violating state or federal laws. But there are many variables in this situation that will dictate the outcome. If you’ve posted something that troubles or could trouble your employer, call our office immediately to discuss your concerns.

Charlie Kirk’s Death Causes Flurry of Online Reaction

Charlie Kirk was a young, controversial conservative who gained fame through his podcasts and online presence. He later co-founded Turning Point USA, a nonprofit organization that promotes conservative values. In September, Kirk was murdered by a young detractor while addressing a group at a Utah university.

Kirk became famous, or infamous, due to his controversial views.  He:

• Questioned the intellectual capabilities of women and black people
• Stated that some gun deaths were justified to have Second Amendment protections for firearm ownership
• Claimed that passing the 1964 Civil Rights Act was a mistake
• Portrayed immigrants and those who are transgender as existential threats to the country

Kirk’s death, much like his life, was the subject of a massive outpouring of social media posts, from both supporters and critics. The negative response to Kirk varied widely, from people stating they disagreed with what he said, but he shouldn’t have been killed, with others stating they were happy he was dead.

Some employers of some Kirk detractors fired them as a result. They were privately and publicly employed. Some were exposed by conservative groups seeking negative online comments about Kirk, to get people fired as a punishment.

New Jersey Firing Due to Negative Online Kirk Posting

At least one New Jersey resident lost a job due to a personal Facebook post about Kirk after his death, according to the Rider News. Kate Ecke, a Rider University adjunct professor of social work, was fired on September 17. A college-wide email by Rider President John Loyack didn’t name Ecke but stated, in relevant part:

Today, Rider University took swift and decisive action to terminate an adjunct faculty member whose behavior did not reflect our expectations for respectful and civil engagement. During our review of this matter, several individuals at Rider received a threat directed at our campus as a result of this individual’s actions.

In an interview with the newspaper, Ecke stated she was fired for expressing personal views on her own Facebook account. Some of those posts include:

• “I don’t care that Charlie Kirk got shot. Kids are being slaughtered in their classrooms and the same people crying outrage for him have nothing to say when it’s children in body bags. Spare me the hypocrisy. Charlie Kirk chose his platform—those kids never chose to die at school.”
• “[T]he whole message here is that no one deserves to be shot. At school. In a movie theatre. In a library. You’re missing the whole point of this.”
• “For everyone saying ‘Charlie Kirk didn’t deserve to die that way’: Welcome to the f—ing group chat. That’s what we have been saying all along. No one should be shot, ever. That’s … the whole point of this conversation.”

After Ecke’s dismissal, her Union, the American Association of University Professors, stated it would seek her reinstatement. They took the position that she shouldn’t have lost her job for expressing personal beliefs.

Ecke Was Not the Only One Getting Fired

National Public Radio (NPR) reports it found 33 people (many of them teachers, public-sector employees, firefighters, and military members) were fired, placed on leave, or subjected to investigations after social-media posts criticizing Kirk or expressing opinions about his death.

What Legal Protections Do I Have for Expressing Myself and Keeping My Job?

For most private-sector employees, employment is “at will”:  your employer may fire you for any reason that is not illegal, and you are free to quit your job.  A personal social media post could lead to job termination if the employer chooses to take that step, provided it doesn’t violate the law.

It may violate the law if management tolerates certain extreme social media posts by some employees, but not others. If an employer looks the other way when an employee makes racist remarks about Blacks, but fires someone stating something biased against Whites, they may have violated anti-discrimination or anti-equal protection laws.

Discipline and firings may also be illegal if they’re retaliation against someone because of their past protected actions. If someone posts something controversial who has filed for unemployment or workers’ compensation benefits, or has complained about prior discrimination or illegal employer actions, and is fired, but similar posts by those who haven’t engaged in those acts are tolerated, that could be unlawful retaliation.

As discussed below, the First Amendment to the U.S. Constitution and analogous protections under the New Jersey Constitution also may be a basis to attack unlawful or retaliatory workplace discipline.

You may have more legal protections against discipline or firing if you are employed under the terms of a private contract or your workplace is subject to a collectively bargained agreement.

As a Government Employee, Do I Have More Protections Under the US and New Jersey Constitutions?

Yes, but there are limits. If your public employer disciplines you for your speech, a court will consider whether:

• You spoke as a private citizen, not as part of your official duties,
• You spoke about a matter of public concern
• Your interest in speaking outweighs the government’s interest in maintaining workplace efficiency and discipline

If so, your speech will likely be interpreted as protected by the First Amendment of the US Constitution, and you shouldn’t be disciplined.

New Jersey’s state Constitution offers speech protections: “Every person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press.”

The N.J. Supreme Court has stated: “New Jersey’s Constitution provides broader protection for free expression than the Federal Constitution and practically all others in the nation.” If you work for a government entity in New Jersey, you may benefit from the increased protection the state constitution offers.

Has Your Employer Treated You Illegally in Some Way?

If you believe your employer violated your rights due to a social media post, we will listen to your facts, explain the law, and suggest right and reasonable approaches for relief.

Kingston Law Group provides compassionate counsel and tough advocacy. We are ready to help you, your loved ones, and your friends. Call us at +1-609-683-7400 or contact us online to schedule a near-term initial consultation at a reduced hourly rate. Call or write us today. You’ll be glad you did.

The post “May I Lawfully Be Fired for a Controversial Social Media Post?” first appeared on Kingston NJ Law Group.

We are in an era where managerial decisions are increasingly automated, including those involving human resources. That effect will only increase as time passes and artificial intelligence becomes more capable. Should New Jersey get ahead of the curve and create guardrails to protect employees from computer-driven decisions that can change their lives?

If you feel that your employer has taken unlawful acts against you, you may be entitled to compensation for economic losses, emotional distress, counsel fees/costs, and potentially punitive damages. If you would like to discuss your situation with a lawyer, please contact our office to arrange a consultation.

What is Artificial Intelligence (“AI”)?

AI refers to computer systems that perform complex tasks previously accomplished through human reasoning, creation, and decision-making. These tasks could include recognizing speech, making decisions, problem-solving, or understanding emotions.

AI tries to copy how we think and make decisions through the use of data, statistical models, and algorithms (step-by-step procedures or instructions designed to solve a problem or complete a task), according to Science News Today. AI algorithms gather information from available data, make changes based on experience, and improve their performance over time.

How Might AI Affect My Work?

AI may substantially impact Americans’ jobs, especially those in “white collar” roles. Employers are expecting employees to rely more on AI in the hopes they’ll “do more with less” and make organizations more profitable while cutting expenses. Those expenses will include payroll.

By one estimate, about 10,000 US jobs were lost due to the use of AI during the first seven months of this year. The World Economic Forum predicts that 92 million jobs may be lost worldwide due to AI by 2030, but 170 million new jobs are expected to emerge as a result. Those future opportunities will involve more physical than mental work. They include agricultural work, delivery drivers, sales positions, construction, and food processing.

How is AI Used in Human Resources?

IBM, a computer and software company, offers AI solutions, including those that address human resources (HR). According to the company,

AI in HR deploys various technologies capable of analyzing vast troves of data in real-time, recognizing patterns, generating content, and simulating human-like interactions. These capabilities are changing how HR departments operate, allowing them to move from primarily administrative functions to more strategic roles within organizations...

In the coming years, the use of AI will impact HR departments in two significant ways: First, by streamlining HR operations and leveraging workplace data to improve the talent planning and management process. Secondarily, AI will require HR departments to foster a change-minded culture capable of embracing new ways of working…

IBM states one area they can help employers with is “performance management”:

Performance management processes can be augmented through AI-enabled continuous feedback systems. These systems facilitate regular performance conversations and track feedback patterns, improving the regular review process. Performance analytics tools identify patterns across teams and departments, providing insights that might be difficult to discern manually. These AI-powered enhancements create more dynamic, data-driven performance management approaches to better support employee development and organizational success.

…IBM used an AI agent to help HR managers through the quarterly promotion process. The agent automated the collection and formatting of data across multiple systems for as many as 17,000 employees, significantly reducing HR’s administrative burden.

Some organizations use AI not just to gather and organize data to base HR decisions, but rely on it to make decisions concerning hiring, pay cuts and increases, demotions and promotions, discipline, and job losses. Widespread use of AI is just beginning. Its capability and management’s trust in it will grow over time. Some of these decisions are difficult. Managers may be more than happy to have AI decide for them.

Should States Regulate the Use of AI?

The Trump administration doesn’t want the federal government to regulate AI, but that doesn’t mean states cannot. California’s Civil Rights Council has announced finalized rules concerning discriminatory employment decisions and the use of AI. These new regulations fall under one of the state’s fair employment practices laws.

They clarify that employers cannot use automated-decision systems (ADSs) to make illegally discriminatory employment decisions against applicants or employees in violation of state law, including the following:

• Employers can’t use online applications to limit, screen out, rank, or prioritize applicants based if they have a disparate impact on an applicant’s protected basis (disability, race, color, sex, religion, etc.) unless the technology is job-related, consistent with business necessity, and allows for an applicant to request an accommodation
• The use of an ADS to measure skill, reaction time, dexterity, or other abilities or characteristics may discriminate against those with specific disabilities and other legally protected characteristics. In these circumstances, an employer may be required to accommodate the job applicant reasonably
• An ADS analyzing an applicant’s facial expressions, tone of voice, physical characteristics, or behavior may unlawfully discriminate due to the person’s disability, so they may need to reasonably accommodate them
• California law prohibits medical or psychological exams before a job offer. This now includes those given by an ADS, including those asking for information likely to result in disclosing a disability
• Liability for ADS-based illegal discrimination extends to the employers’ agents, potentially including those providing the ADS

The regulations don’t require ADSs to be tested for illegal bias, but they suggest that if testing is done, results could be used as an affirmative defense against a discrimination claim. It’s doubtful anything like this will be enacted at the federal level, but New Jersey job applicants could benefit from these kinds of protections.

Has Your Employer or Potential Employer Illegally Discriminated Against You?

Do you have questions or concerns about how AI may have been used illegally to deprive you of a job offer, pay raise, or promotion? If so, we will listen to your facts, explain the law, and suggest right and reasonable approaches for relief.

Kingston Law Group provides compassionate counsel and tough advocacy. We are ready to help you, your loved ones, and your friends. Call us at +1-609-683-7400 or contact us online to schedule a near-term initial consultation at a reduced hourly rate. Call or write us today. You’ll be glad you did.

The post Should New Jersey Regulate Employers’ Use of Artificial Intelligence? first appeared on Kingston NJ Law Group.

There are different pathways to divorce that serve your needs and those of your children without battling it out in a courtroom. One of them is cooperative divorce, though any divorce resolved through negotiations is reached through the parties’ cooperation.

Kingston Law Group’s divorce practice has helped thousands of clients reach their goals in the best ways possible. Most of the time, that means effective negotiations, while other cases couldn’t be resolved without some degree of litigation, from 1% to 100%. No matter which path your divorce takes, Kingston Law Group will zealously assert and defend your legal rights and put in the work required to protect your short- and long-term interests – as well as your children’s. Call us at 609-683-7400 or contact us online to learn more.

How Does Cooperative Divorce Work?

Negotiating and resolving disagreements out of court is less expensive than litigation. Divorce agreements by the parties may be more comprehensive than a divorce decree entered after a trial. They may provide processes and outcomes that Family Court Judges simply have no power to do. They also tend to lead to fewer post-divorce disputes between parties who have “bough in” to the processes and outcomes stated in the Settlement Agreement.

If spouses believe they can end their disputes through good faith negotiations, both collaborative (lawyers and parties pledge not to use the courts, except to put through an uncontested divorce) and cooperative (no such pledge, but parties agree to proceed with maximum problem solving) approaches almost certainly will be more cost-effective than a traditional one.

Given the high costs in time, energy, emotion, and money, nearly all divorces end with settlement agreements. While both approaches focus on a negotiated resolution, cooperative and collaborative divorces have different structures and commitments.

If neither approach is chosen, issues could still be resolved through negotiations, or a combination of negotiation and mediation, with remaining disagreements on specific issues potentially being decided in a courtroom.

What is a Cooperative Divorce and What are Its Benefits ?

A cooperative divorce lacks collaborative divorce’s binding agreement (see below) to stay out of court. This provides the parties with more flexibility, and it allows both legal counsel to pursue litigation if negotiations fail. Keeping litigation on the table in some circumstances may be a good thing.

Divorcing couples often need carrots and sticks to make decisions during the process. Parties may go to a judge to decide an issue, instead of working it out themselves.  This is a stick that may keep positive negotiation momentum going.

The cooperative approach also lacks the agreement that the parties’ lawyers will stop representing their clients if negotiations don’t produce a final deal. Although it’s not uncommon for a party to change attorneys during a divorce, it can delay the divorce and add complications and costs. It’s something you want to avoid if you can.

The cooperative divorce process is more informal than a collaborative divorce. It’s a good choice if there’s still trust between the parties and they are willing and able to negotiate in good faith, but they want to keep the litigation option open.

Cooperative divorce offers the following:

• Lower costs because the cooperative divorce process is less formal than the collaborative option. Couples may reduce costs by relying on professional support only when it’s needed
• Resorting to litigation is an option if negotiations break down, and there would be no need to hire another attorney, which would make the transition to a more confrontational approach easier than if a new lawyer had to be retained
• Couples may tailor the process to their needs, choosing professionals to involve and how formal or informal the process should be
• Parties in collaborative divorce retain the ability to go to mediation (third party neutral facilitates the process but does not make any decisions) or arbitration (third party neutral is empowered to make binding decisions)
• Collaborative parties often involve CPA and psychological experts as part of the Team.

We discuss all the options when meeting with our clients. Sometimes, the original choice doesn’t work out, so we need to go in a different direction to reach the desired outcome.

What is a Collaborative Divorce and What Are Its Benefits?

A collaborative approach is similar to a cooperative one, yet with some significant differences. Collaborative divorce is more restrictive, yet cooperation remains key.

Those taking a collaborative approach commit in writing to negotiations to end their marriage. They don’t want the “nuclear option” of going to trial and airing their dirty laundry in a public forum, where strangers may discover family secrets online and a Judge may preside at a trial without knowing them and may make decisions that will have substantial impacts on their lives and the lives of their children.

In a collaborative divorce, the parties formally and in a signed writing agree to avoid litigation. This creates a stronger incentive and a barrier to litigation. Both sides have attorneys who negotiate on their behalf. If the process fails, and either side files a court application, then both attorneys representing the spouses step away from the case, forcing the parties to hire new counsel, which can be costly and time-consuming.  That acts as a disincentive for either side – or both – to trigger litigation.

There are downsides to this “no contest” agreement. If the parties ultimately reach no agreement, then they must start over again, opening up the possibility of endless litigation.  They pick up the pieces and try to resolve their differences a second time, through negotiations or litigation.

Collaborative divorces offer the following .

• Lower costs because the collaborative divorce process is less formal than the litigation option. Couples may reduce costs by relying on professional support when it’s needed
• Resorting to litigation is not an option if negotiations break down, and there would be a need to hire another attorney, which would make the transition to a more confrontational approach more difficult
• Couples may tailor the process to their needs, choosing professionals to involve and how formal or informal the process should be
• Parties in cooperative divorce retain the ability to go to mediation (third party neutral facilitates the process but does not make any decisions) or arbitration (third party neutral is empowered to make binding decisions)
• Cooperative parties may involve CPA and psychological experts

Which Approach is Right for You?

There are many variables and possibly big surprises (good or bad) after you start the divorce process. How do you hedge your bets if you’re choosing between a collaborative and cooperative divorce?

• A collaborative divorce may end up with a less expensive outcome than a cooperative one – if it works
• But, if the two parties can’t resolve their issues, then a collaborative divorce will probably end in a more expensive and time-consuming resolution
• A cooperative divorce is a middle ground. The parties try to reach a cost-effective settlement without the potentially higher costs if their efforts fail

Both approaches require good faith efforts and a willingness to exchange accurate information, cooperate, and negotiate fairly. Unfortunately, not all divorcing spouses meet those baseline requirements.  “You have to know your customers.”

Do You Need Answers to Your Questions or Legal Help?

Do you have a family issue that is getting out of control? Are your legal rights and interests at risk? If so, we will listen to your facts, explain the law, and suggest right and reasonable approaches for relief.

Kingston Law Group provides tough advocacy and compassionate counsel. We are ready to help you, your loved ones, and your friends. Call us at +1-609-683-7400 or contact us online to schedule a near-term initial consultation with a reduced hourly rate. Call us today. You’ll be glad you did!!

The post Is Cooperative or Collaborative Divorce the Right Fit for Your Family and You? first appeared on Kingston NJ Law Group.

“Fitness for duty testing” can be a very stressful phrase when you’re disabled. But depending on your limitations and the job requirements, you may not need to be so concerned. Disabled job applicants have some legal protections that should give you a fair opportunity to compete for a job opening.

What is the ADA?

The Americans with Disabilities Act (ADA) is a federal law providing some protections for job applicants and employees who are disabled, have a record of a disability, are perceived by others to be disabled, or are associated with someone who’s disabled (maybe a spouse). There is a similar State of New Jersey statute, the Law Against Discrimination (“LAD”), discussed briefly below, which provides anti-discrimination relief in appropriate cases.

Thanks to the ADA, if an employer is large enough (15 or more employees), it’s illegal to discriminate against a disabled job applicant or employee, just like it’s illegal to take actions against someone because of their age, color, race, sex, religion, or national origin.

The ADA adds another layer of protection because employers are required to make reasonable accommodations so a disabled employee can perform a job’s essential functions. The accommodations need not be made if they pose undue hardship to the employer.

If there’s a good-faith disagreement on whether a proposed accommodation is reasonable or would be an undue hardship, ideally, it should be worked out between the parties in what is called an “interactive process.”

New Jersey’s LAD covers all employers, while the ADA applies to employers with 15 or more employees.

Can I Be Asked If I Can Do the Job I’m Applying For?

Before being offered a job, you can be asked if you can perform a position’s essential functions with or without reasonable accommodation. An essential function is a basic job duty that’s integral to the position. When deciding if a function is essential, you should consider the following:

• Whether the position exists so the function can be performed
• How many other employees are available to perform the function, or how many can share this function, and
• How much expertise or skill is needed to perform the function

Evidence that a function is essential could be:

• It’s covered in a job description and discussed in job interviews
• The experience of present or past job holders
• The time spent performing the function
• What will happen if an employee doesn’t perform the function, and
• A collective bargaining agreement covers it

Generally, employers are given some leeway in deciding if a function is essential, but a judge or jury won’t just take their word for it.

What is Fitness for Duty Testing?

It’s an employer-requested evaluation of a job candidate’s or an employee’s physical, mental, and psychological abilities to perform a job. It can be done with an employee returning to work or offered a job.

A job offer can’t be made subject to passing such an exam, but a job offer can be withdrawn if the person isn’t fit for duty. If an employer uses an exam for new hires, all of them should be examined. Making an exception and requiring an individual to take an exam shows the potential employer perceives that person as disabled, and it creates an additional barrier to employment that those not considered disabled can avoid.

A licensed healthcare professional practitioner should perform the evaluation. Tests must be consistent with business necessity and be job-related, so people don’t lose job opportunities for reasons unrelated to position requirements.

What Can I Do If I’m Found Not Fit for Duty?

The reality is that you may not be fit for duty. As much as you may want this job, if you’re not capable of performing its essential functions (with or without reasonable accommodation), then you may legitimately not be hired. In that case, you may have just avoided a lot of heartache and grief trying to hold onto a job that you were eventually going to lose. If you’re a job candidate, you’ll need to find a job that’s a better fit for you. If you’re returning to work after an illness or injury, you may qualify for Social Security Disability Insurance benefits or private disability insurance payments (or both).

The reality might also be that you are fit for duty, but the part of the job you have trouble with is not an essential function. You can do the job with accommodation that’s reasonable and not an undue burden on the employer. These issues are fact-specific. They have to do with the nature of the job, the extent of your disability, and a possible accommodation’s impact on the workplace.

If you find yourself in this situation, call our office so we can discuss all the issues, the employer’s responsibilities, and how the law may apply in your situation. These scenarios are rarely black and white, with a person clearly able to do the job and an employer obviously making a biased decision. Most of the time, it’s shades of grey. But sometimes the grey is so dark it appears that something isn’t right.

Has Your Employer Illegally Discriminated Against You?

Do you have questions or concerns about the results of a fitness for duty exam? If so, we will listen to your facts, explain the law, and suggest right and reasonable approaches for relief.

Kingston Law Group provides compassionate counsel and tough advocacy. We are ready to help you, your loved ones, and your friends. Call us at +1-609-683-7400 or contact us online to schedule a near-term initial consultation at a reduced hourly rate. Call us today. You’ll be glad you did.

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