Both the STSA and VRRA were amended and re-codified in 1994 and became known as the Uniform Services Employment and Re-Employment Rights Act of 1994 (38 U.S.C. 4301 - USERRA).  The main purpose of USERRA was: 1) to make certain that persons serving in the armed forces, reserves, national  guard or other “uniformed  services” are  not disadvantaged in their civilian careers as a result of their military service; and 2) to make certain service members were promptly re-employed upon their military service conclusion; and 3) to make certain service members were not discriminated against in their civilian jobs as a result of their military service.
 

In order for USERRA to apply,  an employer only needs one employee.  See  Cole v. Swint, 961 F2nd 58, 60(5th Cir. 1992).
   

In construing USERRA and prior laws, Courts have followed the Supreme Court’s admonition that “This legislation is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need.”  Re-employment rights extend to persons who have been absent  from employment because of “service in the uniformed services.”  “Uniformed Services” consists of the following:

• Army
• Navy
• Marine Corp.
• Air Force
• Coast Guard
• Army Reserve
• Naval Reserve
• Marine Corp. Reserve
• Air Force Reserve
• Coast Guard Reserve
• Army National Guard or Air National Guard
• Commission Corps of the Public Health Service
• Any other category of persons designated by the President in time of war or emergency

In order for an employee to give notice to an employer of military service, all notice may be written or oral.  Notice will not be required if:

• Military necessity prevents the giving of notice; and/or
• The giving of notice is otherwise impossible or unreasonable.

Upon return to work after military service, the employee has certain time frames to report back to work depending upon the length of service  (assuming the military member is not injured during military service).  Ninety days after military service is the longest time line upon a service member’s return to make an application for re-employment with the employer.  This ninety-day period is for those members who have served in excess of 181 days or more.
   

One of the more interesting provisions of USERRA is a provision that is colloquially known as the  “escalator position”.  That is, USERRA requires that an employee returning from military service be placed back into a position, with limited exception, to a level of employment that the person would have enjoyed if the individual had been continuously employed.  For example, if an employee left for three years of military service, if all of his or her colleagues in similar jobs and pay scale were given promotions and pay raises based on length of service, the returning service member would  also be entitled to the same promotion and pay raises as if he or she had never left continuous employment. 

   

Hand in hand with the “escalator” clause is the returning service member’s right to all seniority rights and benefits a service member would have obtained had the service member been continuously employed.  The test to determine whether or not rights are seniority rights is whether or not those seniority rights are determined by the length of service.  If it is not, the employer is not required to provide the returning service member with the particular seniority right. 
   

Since the beginning of the “First Gulf War”, the Country’s National Guard has been called upon time and time again.  The question that frequently  arises is if  these “week-end warriors” are covered by USERRA when these National Guardsmen must report for the one week-end a month and two-week training in the summer.  The “week-end warrior” is covered under USERRA,  and any employer prohibition against National Guardsmen performing his or her duties is prohibited under USERRA (this is not to say that the Guardsman is allowed to abuse the rights afforded to Guardsmen under USERRA. If an employer feels an employee is abusing the USERRA rights, the employer is well within his or her right to contact the employee's commanding officer to discuss the situation. Further, there is a national organization called the ESGR (Employer Support for the Garden Reserves), including its local chapter here in New Jersey to assist both employers and employees regarding USERRA rights). While service members may use vacation time to fulfill the service member’s obligation to the military, an employer is prohibited from requiring a service member to utilize vacation to do so. 
 

An aggrieved service member may bring an action against an employer privately, or utilize an attorney in the Department of Justice if VETS refers a matter to the Department of Justice.  Once a service member chooses the path he or she wishes to take, the service member is barred from using the declined option if the chosen path is unsuccessful.  While the Department of Labor  is charged with overseeing the law and implementing its requirements (The Department of Labor has a specific sub-group within the Department called the "Veterans Employment and Training Services (VETSS)" which investigates complaints and attempts to resolve these complaints. If a complaint cannot be resolved in an amicable fashion, VETS can refer the matter to the Department of Justice).   
   

While this article has dealt with the service member once employed, employers should be aware that it is also unlawful to deny an employee-candidate based solely on his or her involvement in the Uniform Services.  The burden of proof to prove other factors resulted in denial of employment is rested squarely on the employer.   
   

While USERRA is a law that may be difficult to navigate and understand, the rationale for its implementation certainly is very clear.  Individuals who are willing to leave their safety nets for higher service to the country need to be valued and protected upon his or her return to civilian life.  While the law does recognize the sacrifice employers make to allow service-member employees to perform his or her duties, it is very difficult to argue against the safety net that USERRA provides.

 
The Bill, initially introduced by Senator Christopher J. Connors, Assemblyman Brian E. Rumpf and Assemblyman Daniel M. Van Pelt in January of this year, requires the purchaser of a property in an age-restricted community to certify that the person occupying the residence meets the age requirements of the community. This would assist adult communities in complying with quotas established for the "housing for older persons" exception from the federal "Fair Housing Amendments Act of 1988."

Currently, federal law states that 100% of the resident in a community built for occupants 62-years of age or older must be 62-years of age or older. Whereas, communities intended for residents 55-years of age or older, only need to have 80 % of the residents and one person per household be 55-years of age or older.
 

I am pleased to announce that SB 88 has been signed into law. This Bill will assist in creating a method of ensuring compliance by age-restricted communities with federal law. You can read more on the passage of Senate Bill 88/Assembly Bill 305 here.

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You can download the New Jersey Legal Update Podcast # 33 here.(8MB)

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The Fair Housing Act, and its amendments, are vehicles used by senior housing developments so that they may "legally discriminate" based upon age. This is acceptable so long as the association maintains its established rules and procedures set forth in the Fair Housing Act. While this post is not intended to go through that procedure, it is intended to advise community associations that they may enforce age restrictions set forth in their own governing documents.

Recently, a town in New Jersey concluded that its ordinance pertaining to senior housing (or age restricted communities) mandated that anyone under the age of 19 may not live in any age restricted community within its township boundaries, with limited exception. The association's governing documents set minimum age requirements which were enforceable. In this situation I believe the Township's ordinance was to narrow and the Township should have been required to broaden its acceptance of age limitations for restricted communities.

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The Appellate Court recently struck down an associations ability to raise monies through a capital contribution paid at closing by the seller(Micheve v. Wyndham Place at Freehold Condominium Association).

This particular Board adopted its capital contribution by way of a Board resolution. In ruling that the capital contribution was discriminatory, the Court stated that the resolution violated the New Jersey Condominium Statute, and the association's own Master deed and By-Laws.

Associations are urged to discuss this issue with its counsel, particularly if the association charges a capital contribution by an adopted resolution.

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Once I knew what the community's attorneys were basing their defense on, I suggested we file a motion requiring the community to prove it had gone through the required statutory steps to have the tort immunity amendment adopted. This meant proving to the Court that it held a validly announced meeting, and had in its possession all of the ballots that had been cast in that vote. When the community was unable to produce this documentation, the Judge found in favor of our client.

Community associations need to be aware that it is just as important when adopting the tort immunity amendment that the ballots and all of the other documentation of the vote are maintained and accessible in the event proof of their existence and or validity in needed in the future. In addition to tort immunity amendments, associations must expand their review in determining what documents it will keep and for what period of time, in the event it is ever needed.

Here is a link to the agenda for our presentation on transition. If your board or management company would like to discuss transition issues, tort immunity, Fair Housing Act requirements or other matters which impact associations, please feel free to contact me to discuss scheduling an educational seminar.

The requirements are not complex but must be addressed regularly and accurately. A corporation must submit an annual report with the required fee each year following its date of incorporation. This is also an opportunity to ensure that its registered agent and the physical location of the registered office is correct. A corporation which fails to file its annual report for two consecutive years may have its charter revoked. As a result of this revocation, the corporation can lose the right to use its corporate name, among other things. To reinstate its good standing, the corporation must submit certain forms and fees. If, while its charter was revoked its name has been "taken" by another corporation, the association will have to come up with a new name requiring new filings and additional fees. A Stark & Stark attorney can serve as the association's registered agent which facilitates the necessary filings each year.

Please take a moment to ensure that your association's corporate filings are up to date.

Common areas include clubhouses, pools, and recreation areas such as playgrounds and tennis courts. In New Jersey, towns and municipalities may not tax a condominium's common elements. It is generally believed, but not technically the case, that the common areas of a homeowners association enjoy the same tax protection.

Many associations are improperly assessed taxes on their common areas. Now is the time to review tax assessments and determine whether a tax appeal is warranted. We suggest the following:

1.Get a copy of your 2005 tax assessment. Your tax assessor will send you a small "green card" in January or early February stating the association's tax assessment. If you do not receive the tax card, call the township tax assessor.

2.Review the tax card and determine if common property is being separately assessed. Is the clubhouse being assessed at its full value? Is open space being assessed as a building lot?

3.Review the association's governing documents to confirm that the common property is specifically identified as common property, subject to restrictions on use and transfers.

4.If the common property is being separately taxed, call us to discuss filing a tax appeal. We may be able to help reduce the assessment to a nominal value or no value at all.

5. IMPORTANT: The deadline to file your tax appeal is April 1, 2005.

Should your homeowner association have questions regarding the assessment of its common property area, contact A. Christopher Florio, David J. Byrne or Timothy P. Duggan to discuss your specific matter.

The New Jersey Supreme Court ruled that under the Condominium Act, N.J.S.A. 46:8B-1 a builder or developer cannot make a condominium association responsible for an individual association member's failure to pay assessments owed to an "umbrella" organization. In this matter, the "umbrella" organization was the plaintiff, Brandon Farms Property Owners Association which was made up of three separate classes of property owners in the Brandon Farms complex.