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Articles Posted in Labor and Employment

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The New Jersey Supreme Court once again expanded  the enforceability of arbitration agreements under New Jersey employment law.  In its opinion in Skuse vs. Pfizer, Inc., the Court left in place the requirements necessary for agreements to arbitrate employee/employer disputes columns-round-300x201under New Jersey employment law, but in its application let the exceptions swallow the rule.

Pfizer’s Arbitration Agreement

Pfizer adopted an arbitration “agreement” – actually, more of a policy.  It was not a contract signed by an employee and Pfizer.  Rather, the employee was deemed to have agreed to arbitrate employment disputes if she continued working for Pfizer for sixty days after the policy’s effective date.  Employees were notified by email (to over 28,000 employees) about the policy and given a deadline to “acknowledge” having received it.  Whether the employees did or did not acknowledge receipt, they would be deemed to have “agreed” to the policy by their continued employment.  There was a training module with four slides which purported to explain the policy; one of the slides gave the employees the option to print a copy, but they were not given a copy by Pfizer; another thanked the employee for taking the training.  In the FAQ section of the training module employees were told that if they did not agree they would be fired.

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An important New Jersey employment law decision was recently issued by the Appellate Division in the case of Dibuonaventura vs. Washington Township.  Thesupreme-administrative-court-3565618_960_720-300x200 case has a long and tangled history, but this decision illustrates several important employment law rules affecting New Jersey government employees.

Background: Dibuonaventura I & II

Joseph Dibuonaventura was a police officer in Washington Township.  In 2012, he pulled over the Township’s former mayor and charged him with driving while under the influence of alcohol and refusing to take a breathalyzer test.  The former mayor disputed the charges and lodged internal affairs and criminal complaints against Officer Dibuonaventura.  Eventually the officer was indicted, and the Township suspended him pending the outcome of the criminal charges.  He was eventually found not guilty of all criminal charges by a jury.

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A recent New Jersey employment law decision in the case of Matter of Shyner examined the procedures available to New Jersey State Troopers to appeal employer imposed discipline, and the standards which appellate courts will utilize to review disciplinary decisions by the Superintendent of New Jersey State Police.

The Shyner Case.

Dawn Shyner was a lieutenant in the New Jersey State Police.  In 2014 she called 911 because of an altercation with her estranged husband; local police responded.  No charges were filed, nor was a domestic violence restraining order sought.  In accordance with New Jersey State Police protocols, she notified her supervisor and surrendered her weapon.  During that meeting her supervisor told her that he did not believe the incident would result in a domestic violence investigation, although undoubtedly an ordinary internal affairs investigation would ensue.

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The Arafa Case

The New Jersey Supreme Court issued an opinion in the case of Arafa v. Health Express Corporation in a consolidated appeals about a niche question regarding the interplay of the Federal Arbitration Act (the “FAA”) and the New Jersey Arbitration Act (the “NJAA”) regarding the judge-gavel-1461998219JBc-300x200enforceability of agreements in employment contracts to arbitrate disputes under New Jersey employment law.  The consolidated cases were both brought as class actions by employees whose duties included driving to make deliveries for their employers.  In one of the appeals it was clear that the employees were making deliveries outside the state as well as in it, and were therefore engaged in interstate commerce; in the other it was not clear.  In both cases the employers argued that the cases were not covered by the FAA, which contains an exemption which provides that the FAA will not apply to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,” which the United States Supreme Court has defined to include interstate deliveries.  Because the drivers were not covered by the FAA due to the exception, the employers argued, they were covered by the NJAA, which did not contain such an exemption, and the arbitration agreements were therefore enforceable.  Thus, the employers argued, the lawsuits in Superior Court should be dismissed and the cases submitted to binding arbitration.  The trial judges in the Law Division of the Superior Court of New Jersey agreed with the employers and dismissed the suits and ordered them to arbitration.  In both cases, the employees separately appealed, and different panels of the Appellate Division of the Superior Court reached different decisions.  To resolve the split, the New Jersey Supreme Court agreed to hear the appeals.

Why does this matter?  If it seems pretty arcane, it has significant real world consequences.  First, the employees sued for unpaid overtime under the New Jersey Wage and Hour Law because New Jersey law and New Jersey courts are seen – rightly or wrongly – as more friendly to employees than federal court, which of course is why the employers didn’t want the case there.  Moreover, arbitration is seen as much more friendly to employers than employees, which is why the two sides were fighting over it.

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Employment Law Evidence Issues

Our employment lawyers represent employees and employers in all aspects of New Jersey employment law.  One of the most litigated issues is the evidence which an employee must present to demonstrate that retaliation or discrimination was behind an adverse action, such as supreme-administrative-court-3565618_960_720-300x200firing or demotion.  The Appellate Division recently issued an important decision on the ability of jurors to infer retaliation from circumstantial evidence.

The Yatauro Case

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Our employment attorneys represent employees in New Jersey Civil Service appeals and disciplinary proceedings.  One frequent matter of contention in the New Jersey Civil Service System is bypassing candidates for selection or promotion under the “Rule of Three.”

The Rule of Three

The New Jersey Civil Service Act requires that hiring and promotion must be based on fitness and merit, determined by competitive Civil Service examinations wherever possible.  After a test, the New Jersey Civil Service Commission will issue a list of eligible candidates ranked in order of their scores.  Hiring and coppromotion must be made according to the eligible candidates’ ranks on the list.  However, an exception exists.  The Rule of Three allows New Jersey Civil Service employers to bypass eligible candidates ranked higher on hiring and promotion lists in favor of lower ranked candidates so long as they select one of the top three eligible candidates remaining on the list.  After each decision to hire or promote, the Rule of Three evaluation begins all over again.  So, for example, if the first candidate is selected, the employer may then select any of the candidates ranked second through fourth for the second spot.

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The Chancery Division of New Jersey’s Superior Court recently issued a public employment law decision in the case of Petrella v. The Hackensack Board of Education which is important for New Jersey teaching staff members because it examined the grounds for overturning an arbitration decision on tenure charges under the TEACHNJ Act.judge-gavel-1461998219JBc-300x200

Under New Jersey employment law, tenure confers many benefits on teaching staff members.   A teacher or other teaching staff member, such as an athletic director, who has tenure may not dismissed or have their pay reduced for any reason other than incapacity, inefficiency, conduct unbecoming, “or other just cause.”  It also gives teaching staff members appeal rights if tenure charges are filed against them, which includes binding arbitration under the TEACHNJ Act.

In the Petrella case, tenure charges were filed against a tenured athletic director for:

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New Jersey employment law provides that government employees may be fired for conviction of a crime, and for many crimes they must be fired.  However, if they are exonerated they may be reinstated to their position.  They may be subject to further discipline, but if they are not they may also receive back pay, police-hoboken-train-stationseniority and benefits for the period of their suspension.

Suspension During Criminal Charges

New Jersey Civil Service Commission regulations provide that an employee’s conviction of a crime is grounds for discipline.  An employee suspended while a criminal complaint or indictment is pending must be served with a Preliminary Notice of Disciplinary Action (known as a “PNDA”). The PNDA should include a statement that forfeiture of the employee’s position may result, and that the employee may choose to consult with an attorney.  In this case representation by an attorney is always advisable.  Within five days of receipt of the PNDA, the employee may request a departmental hearing. If no request is made (within five days or an agreed upon extension) the employer may issue a Final Notice of Disciplinary Action (an “FNDA”).

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The New Jersey Supreme Court recently issued an important employment law decision in the case of  Barila v. Board of Education of Cliffside Park regarding the ability of unions to bargain away employee benefits enjoyed under prior contracts.teacher-300x224

Benefits, such as time off, are terms and conditions of employment which may be bargained for in collective negotiations.  (The term “collective negotiations” is used in the public sector instead of “collective bargaining” because, unlike in the private sector, government employees do not have the right to strike under New Jersey employment law.)  The resulting contract (or “collective negotiation agreement”) sets the terms and conditions of employment, provided the parties have bargained in good faith and the employees receive the minimum levels required by statute.

In this case, under prior contracts between the Cliffside Park Board of Education and the teachers union, including the most recent one in effect from 2012 through 2015, longer term employees could carry over and be paid for their unused sick days up to $25,000.  Not all employees could do so, however, because the New Jersey Legislature had passed a law limiting payment for unused sick time to $15,000 for employees who commenced work on May 21, 2010 or thereafter.  The statutory limit did not apply to employees who started work before May 21, 2010.

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In the tough economic times brought on by COVID-19, many governors and veterans-300x200mayors, including New Jersey’s Governor Murphy, have said that widespread layoffs may be necessary if federal assistance is not forthcoming.  Our attorneys represent New Jersey Civil Service employees, and we see the struggles they are facing.  Given this, we thought the time was right to review the layoff rights available under New Jersey Civil Service law.

 
Layoffs

A layoff is the termination of a permanent employee’s employment because of economic reasons.  Demotions or reduction of hours for economic reasons are also treated as layoffs, triggering the rights and procedures applicable to layoffs.

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