Articles Posted in Labor and Employment Law

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Arbitrators make the final decision in hearings on tenure charges.  Appeals are limited.  However, the scope of their powers to fashion appropriate discipline was open to question.  As I wrote last year, the Appellate Division of New Jersey’s Superior Court ruled in the case ofschool-bus-1-300x200 Sanjuan v. School District of West New York that arbitrators were limited in those powers, and could not impose demotion as a remedy for disciplinary violations.  The case was appealed, and the New Jersey Supreme Court issued a decision overturning the Appellate Division’s decision.

Background

Amada Sanjuan worked for the West New York Board of Education as an assistant principal.  On February 12, 2020, she fell down a flight of stairs, was injured, and was out of work as a result.  Sanjuan claimed that she fell while picking up a piece of paper on the stairs.  However, video showed that she removed a piece of paper from her purse after she fell, and placed it at the top of the stairs.

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New Jersey employment law in the public sector incorporates the doctrine of collateral estoppel, which in some cases bars relitigating issues already decided in another forum.  This applies to administrative appeals of employment action.  A New Jersey appellate court7-300x225 recently examined this doctrine in the context of the revocation of a teacher’s teaching certificate after an arbitration on tenure charges in the case of In the Matter of the Revocation of the Certificates of Lesley Etheridege by the State Board of Examiners.  The court extended the reach of the New Jersey Supreme Court’s Winters case.

Background

Lesley Etheridege was employed as a teacher by the Passaic County Vocational School District.  She held a New Jersey Department of Education “Teacher of Electronic Technology Certificate of Eligibility” and a “Teacher of Electronic Technology Standard Certificate.”  In 2015, the District filed 23 tenure charges against her with the New Jersey Commissioner of Education, one for inefficiency under the TEACHNJ Act, and 22 for various instances constituting conduct unbecoming a teacher (one of which the District later dismissed).  The Commissioner found that, if true, the allegations would be grounds for termination or reduction in salary and therefore transferred the charges to an arbitrator in accordance with the TEACHNJ Act.  The arbitrator held three days of hearings and sustained the charges, finding that Etheridge had committed conduct unbecoming by “falsifying grades and engaging in inappropriate grading practices; failing to report to teaching assignments; leaving students unattended; leaving the school campus without permission or notification; failing to complete lesson plans; and insubordination by failing to provide lesson plans as directed by her supervisor.” The arbitrator rejecter Etheridge’s argument that the charges were brought because of political affiliation, nepotism, union activity and discrimination.  The arbitrator found that termination was the appropriate remedy for her continued pattern of inappropriate behavior.

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New Jersey Employment Law Protections for Pregnant Employees

New Jersey employment law, as well as Federal employment law, prohibits discrimination against employees because of pregnancy, requires employees to reasonably accommodate employees’ pregnancy, bars retaliation against employees who request accommodations for pregnancy or object to the treatment of pregnant employees, and bars coercion of pregnant employees from being required to acceptkids-300x225 unreasonable or no accommodations or take leave unless medically necessary.

Under New Jersey employment law, the primary statutory protection for pregnant employees is the New Jersey Law Against Discrimination.  The main provision of the Law Against Discrimination protecting pregnant employees is N.J.S.A. 10:5-12.  This provision makes it illegal “For an employer, because of… pregnancy or breastfeeding… to refuse to hire or employ or to bar or to discharge from employment or to discriminate against an individual in compensation or in the terms, conditions or provisions of employment.”  This has been held to also bar harassing an employee because of protected traits, such as pregnancy.  These provisions also apply to unions and employment agencies.

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One of the most difficult New Jersey employment law issues confronted by government employees is that they are sometimes drawn into legal action because of actions taken in the course of their employment.  Defending such charges can cause significant expense andsupreme-administrative-court-3565618_960_720-300x200 hardship to government employees.  For teachers, administrators and other public education employees, however, there are two laws which provide for payment of the employee’s attorneys fees and litigation expenses by their board of education in certain criminal, quasi-criminal, administrative and civil legal actions. The Appellate Division examined the question of when an employee must notify their employer and request payment under the two different statutes in a case where the New Jersey State Board of Examiners sought to revoke an employee’s teaching certificate in the case of Maria Azzaro v. the Board of Education of the City of Trenton.

Background: The Order to Show Cause and Administrative Litigation

Maria Azzaro worked for the Trenton Board of Education.  The New Jersey Department of Education, Office of Fiscal Accountability and Compliance alleged that while Azzaro was a vice-principal at Trenton Central High School improper practices occurred including misassignment of students, giving students credits for classes they did not attend or attended only sporadically, that certain classes did not meet Department requirements, and that transcripts were falsified so that students could matriculate.  As a result, in 2007, the New Jersey Department of Education, State Board of Examiners served Azzaro with an Order to Show Cause seeking revocation or suspension of her teaching certificate because she allegedly knew of or participated in these practices.

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A recent New Jersey employment law decision in the case of A.B. vs. Board of Education of the City of Hackensack, Bergen County illustrates the dangers of public employees, especially teachers, posting suggestive content on their social media accounts, and the reach and consequences of the New Jersey “Pass the Trash” Law.

 

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A.B. was a teacher with the Hackensack Board of Education.  In 2013 the Board was advised that A.B. had made inappropriate posts on her social media page, including: “Fuck me, I’m Irish”, and “Women say Men Think with Their Penis. Ladies, don’t be afraid to blow their minds.”  Finding these posts could potentially constitute sexual misconduct, the Board considered discipline and started an investigation, including referrals to the Hackensack Police Department and Bergen County Prosecutor’s Office.  The Board of Education was particularly concerned that A.B.’s post could have been seen by her minor age students.  Three days later, the Board of Education and A.B. entered into a settlement agreement in which she resigned. She then went to work for another school district.  New Jersey enacted the Pass the Trash Law in 2018.

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New Jersey whistleblower retaliation lawsuits turn on the question of evidence.  This is a frequent area of dispute in New Jersey employment law.  A New Jersey appeals court recently examined the evidence necessary to establish a claim of whistleblower retaliation under the New Jersey Conscientious Employee Protection Act, New Jersey’s Whistleblower Law, in the case of Carol Smith vs. Konica Minolta Business7-300x225 Solutions U.S.A., Inc.

Background

Carol Smith worked for Konica Minolta Business Solutions, U.S.A., Inc. (“KMBS”) as a sales representative selling business document management technology and solutions for fourteen years.  She worked out of KMBS’s Iselin office.  She used her own personal laptop throughout her employment.

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New Jersey employment law requires that employees must be paid at regular intervals, at least twice per month.  The proposition that employees should be paid for the time that they work does not seem to be illogical.  However, litigation over non-payment of wages is all toous-supreme-court-300x200 common.  The New Jersey Appellate Division recently addressed one of the laws behind this issue in the case of Veronica Villalobos v. Beast Coast Moving Limited Liability Company.

Background

Veronica Vilalobos and Joe Esquijarosa brought suit against their employer, Beast Coast Moving Limited Liability Company, for violation of the New Jersey Wage Payment Law, in the Law Division of the Superior Court of New Jersey, sitting in Bergen County.

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The Appellate Division of New Jersey’s Superior Court recently examined the use of the “Rule of Three” in New Jersey civil service list bypass appeals in the case of In the Matter of Antonio Salters, Fire Fighter, Township of Hillside.

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Salters applied to become a firefighter for the Township of Hillside, New Jersey.  He passed the examination and ranked fourth out of forty eligible candidates on an open competitive employment list.  Thirteen candidates on the list were ultimately hired, but the Township exercised the “Rule of Three” to skip Salter on the list.  Salter appealed his bypass to the New Jersey Civil Service Commission.

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It’s a nightmare scenario for an employee.  She has a good job, but has received the opportunity of a lifetime.  She quits her job, moves to a new city, and gets ready to start her new position.  Then, just before she starts, the prospective employer calls and says, “Oops, we’ve changed our minds.  Sorry….”  Now she’s in a new city and maybe a new state, with a new lease or mortgage, and no job.  Does the law provide hercontract-1464917__340-300x200 with any remedy?  Fortunately, New Jersey employment law does provide relief under certain conditions.

Breach of Contract

The employee is in the best position if she received an employment contract.  If she has a written contract, she has the full range of remedies for breach of contract.  This does not mean that the prospective employer does not have defenses – there may be a perfectly good reason for rescinding the offer.  For example, the offer could be for an attorney who was disbarred or a doctor who lost her license to practice medicine.  However, there is a good chance that the contract will provide the employee with a remedy in court.

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A recent New Jersey employment law decision in the case of Rosemary Beneduci vs. Graham Curtin, P.A. addressed when failing to offer an employee of one business entity a job with a second when the two merge constitutes an illegal employment practice under New Jersey’s Law Against Discrimination.  While the case involved two law firms, it would be equally applicable to any employers.NJ_State_House-300x200

Background

As the opinion explained them, the facts are relatively straightforward.  Rosemary Beneduci was a long-time employee of Graham Curtin, P.A., a major New Jersey law firm.  She had been on disability leave for knee replacement surgery.  At the same time, Graham Curtin was merging with a second firm, McElroy Deutsch.  When the merger was completed, McElroy would be the surviving firm.  All of the attorneys and employees at Graham Curtain who did not leave for another firm were offered employment with McElroy except for Beneduci.  All of them became employees of McElroy except for Beneduci and one part-time employee who chose to retire.  The testimony indicated that Graham Curtin’s employees were hired based on the recommendation of its former managing partner; he recommended all the employees be hired by McElroy except for Beneduci.  When Beneduci emailed the managing partner, her direct supervisor, that she would be returning to work, he met with her, terminated her and offered her a severance agreement.  She rejected the agreement and sued Graham Curtain, its managing partner, and McElroy for violation of the New Jersey Law Against Discrimination.

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