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Articles Posted in Labor and Employment Law

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As a result of the COVID-19 pandemic, the federal government passed the Families First Coronavirus Response Act (“FFCRA”) on March 18, 2020.  This law includes two Acts providing for paid leave to be enforced by the US Department of Labor’s Wage and Hour  Division.  They provide great protections for New Jersey employees which should help the economic recovery.

These 2 Acts are the Emergency Family and Medical Leave Expansion Act, and the Emergency Paid Sick Leave Act.  While the provisions were initially only supposed to apply from the effective photo__1894482_mclaughlin_nardi_4712date of April 1, 2020 through December 31, 2020, they may be extended.  Much depends on the current standoff between Congress and President Trump.

The Emergency Paid Sick Leave Act applies to all employers with less than 500 employees.  No prior employment or employment history with the employer is required for employees to be covered. The Act generally provides for 80 hours (or 2 weeks) of paid sick leave to qualifying employees.

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As we have explained here before, the New Jersey Civil Service appeal process gives civil service employees a meaningful avenue for appealing discipline imposed by their government employers.  However, a recent appellate opinion is a good reminder that this meaningful avenue for appeal is a two-way street.police-1714956__340-300x200

The New Jersey Civil Service Appeal Process

When a governmental employer wants to discipline employees with civil service protections, it must first give them a Preliminary Notice of Disciplinary Action (a “PNDA”) listing the charges and specifications against them.  Employee then have the right to elect to have a hearing, and whether they do nor not, when final discipline is imposed, the employer must then give the employee a Final Notice of Disciplinary Action (an “FNDA”).  For major discipline (a fine or suspension of more than five days, or termination), the employee has 20 days to file an appeal.

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It is interesting that the trend in New Jersey employment law is to enforce arbitration agreements in employment contracts, while at the same time finding them unenforceable in consumer and commercial contracts.  However, the law is the same: whatever the area, arbitration agreements are interpreted and enforced – or not enforceable – under New Jersey contract law.  It’s therefore worth looking at two recent opinions in these areas to see what can be learned.

The Knight Case:  Consumer Contracts and Consumer Fraud

In the first, a published opinion in case of Knight v. Vivint Solar Developer, LLC, the Appellate Division of the Superior Court of New Jersey stuck down an arbitration agreement which the defendants tried to enforce in a consumer fraud lawsuit over the sale of solar panels.  After Knight sued, Vivint filed a motion to courthouse-1223280__340-300x200dismiss her complaint and enforce an arbitration agreement which required the parties to arbitrate their disputes.

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The State and Federal Constitutions require that when the government takes action against someone that person must receive due process.  For Civil Service employees, that process is the disciplinary appeals process.  Therefore, in the case of In re Smith, Irvington Township, Department of Public Safety, the Appellate Division ruled that an administrative law judge and the Civil Service Commission could not rely on fact findings in a related but separate criminal trial.  This is an copimportant New Jersey employment law decision, because to meet the constitutional requirements of due process and fundamental fairness, the New Jersey Civil Service disciplinary appeals process must give a meaningful hearing to effected civil service employees.

Monique Smith was a career officer with the Irvington Police Department.  On the day that she was promoted to captain, her boyfriend broke up with her by email.  Captain Smith went to his apartment after the ceremony, and followed him when she saw him leaving in his car.  Smith admitted driving over a center island during her drive.  Smith was charged with eight traffic violations for this drive, including leaving the scene of an accident and reckless driving.  The Department suspended Smith because of the charges.  Based on this incident, Smith was also criminally charged with second degree aggravated assault, fourth degree unlawful possession of a weapon, third degree possession of a weapon for unlawful purposes, and fourth degree criminal mischief.  The aggravated assault was dismissed by the State, and the criminal mischief charge was amended to a disorderly persons offense (a misdemeanor). A jury found Captain Smith not guilty of all the charges.  The trial judge also heard the traffic offenses and found Smith guilty of reckless driving.

Prior to the decision, administrative disciplinary charges were filed against Smith for conduct unbecoming a public employee and five other violations stemming from the same conduct.  A departmental disciplinary hearing was held and a six month working day suspension without pay was imposed.  Smith appealed to the New Jersey Civil Service Commission.  The Commission referred the matter to the Office of Administrative Law (the “OAL”) as a contested case.  An administrative law judge (“ALJ”) held a two day hearing.  The ALJ issued a recommended decision that the charges be upheld but that the penalty be reduced to a ninety day suspension.  The ALJ also recommended that Irvington pay half of Smith’s attorneys fees as she was the prevailing party.  However, the ALJ based her findings not on the evidence produced at the hearing, but rather wholly on the evidence and findings of fact from the criminal trial.  Despite Smith’s exceptions, the Commission adopted the ALJ’s recommended decision, except that the ninety days would be ninety working days and it rejected the award of attorneys fees.

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The recent trend has been for courts to find arbitration agreements enforceable under both Federal and New Jersey employment law.  However, prior to enforcing an arbitration agreement, courts must  find that there was actually agreement.  This simple concept was emphasized again by the Appellate Division of Contract-pen-thumb-300x225-80678-300x225the Superior Court of New Jersey in the case of Christina Imperato v. Medwell, LLC.

In that case, Christina Imperato was hired by Medwell, a chiropractic office.  She had a limited education and no prior medical or office experience.  When she was hired, Dr. Ali Mazandarani sat with her and had her sign some pre-employment forms.  They were not explained; Mazandarani sat with her, handed her the forms, and pointed to where she should sign.  She was not given the opportunity to read these or take them home.  The documents included a five page agreement which required that employment disputes be resolved by arbitration rather than court.

Imperato sued Medwell in the Superior Court of New Jersey for sexual harassment in violation of New Jersey’s Law Against Discrimination.  Medwell’s attorneys filed a motion asking the court to dismiss the lawsuit and order the case to arbitration.  The trial judge allowed discovery, including depositions, on the limited question of whether Imperato signed the arbitration agreement, and if so whether she signed it voluntarily and knowingly.  The judge then held a hearing with live testimony on that single issue.

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Background

In the wake of the death of George Floyd, New Jersey Attorney General Gurbir S. Grewal issued two directives amending New Jersey’s Internal Affairs Policy and Procedures (commonly referred to as the “Attorney General Guidelines” or the “IAPP”).  The thrust of these directives is to allow for the disclosure of New Jersey police-1714956__340-300x200law enforcement officer disciplinary records to promote transparency and confidence in police departments and internal affairs disciplinary procedures, as well as to broaden the discovery available to criminal defendants.  Those issues are worthy of a dissertation in themselves, but here I want to focus briefly on their effect in New Jersey employment litigation.

Problems Shielding Records in Employment Law Cases

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A while ago I wrote a blog detailing the disciplinary process and appeal rights of non-civil service police officers under New Jersey employment law.  The Appellate Division of the Superior Court of New Jersey recently issued an opinion clarifying who is and isn’t a law enforcement officer entitled to these rights.police-hoboken-train-station

New Jersey Civil Service confers extensive due process rights on public employees before a government employer may impose discipline, including appeal of discipline to the New Jersey Civil Service Commission.  However, non-civil service employees, including police officers, do not have those protections, however.

Therefore, to increase the protections and legal rights for non-civil service police officers, the Legislature adopted several laws,  the first of which provides:

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Federal versus State Courts for New Jersey Employment Law

Employees who sue their employers for violating New Jersey employment law most often choose to litigate in state court because New Jersey employment law and courts are viewed as more favorable to employees, while employers seek to litigate in Federal court, because federal courts and employment law are seen as courthouse-1223280__340-300x200more friendly to employers.  However, there are exceptions.  For instance, public employees sometimes have additional remedies under federal employment law, and employees can litigate their state and federal law claims together in federal court.  A good example of this can be seen in a decision in  Chesler vs. City of Jersey City by Judge Susan D. Wigenton of the United States District (New Jersey’s federal trial court).

The Chesler Case

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A recent appellate decision in the case In the Matter of Christopher D’Amico, City of Plainfield Fire Department demonstrated once again that New Jersey civil service employees have an effect means of redress for when they are wrongfully disciplined.

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The D’Amico Case

Christopher D’Amico passed the New Jersey Civil Service test and was hired to be a firefighter by the City of Plainfield, a civil service jurisdiction.  As part of his application, D’Amico was required to prove their residency.  D’Amico submitted several documents, including an insurance card.  He admitted that he modified the card to list his actual residence in Plainfield.  Plainfield’s hiring committee recommended against hiring D’Amico because of the alteration, but the Fire Chief hired him anyway.  D’Amico attended the fire academy.  A citizen questioned several cadets’ residencies.  The concern about D’Amico was determined to be unfounded, but the City reexamined his application.  Even though the address was accurate and the change was known by the City when it hired him – and was admitted by D’Amico – the Director of Public Safety ordered the Chief to terminate D’Amico’s employment.  When D’Amico and two other cadets reported to the Department for their first day of work they were fired, in D’Amico’s case not because of his residence, but because of the alteration.

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The Appellate Division of the Superior Court recently issued an opinion on New Jersey employment law discussing the nature of sexual harassment and when a us-supreme-court-300x200tort claim notice must be served in the employment context.

 
The Willis Case

In this case, Willis v. Walker, Fuller and the College of New Jersey, Ratarsha Willis was employed as a senior building maintenance worker by The College of New Jersey (“TCNJ”). Willis and Walker had a consensual affair, during with Walker recorded their tryst on his cellphone in flagrante delicto.  Willis did not report to Defendant Walker, but he could assign her work.  Walker advised Willis that he showed the video with other employees, including Fuller, because she was teasing Walker that “his penis was little.”  Fuller, a supervisor, discussed the video with other TCNJ employees, but took no action to stop the conduct or report it to human resources.

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