Articles Posted in Labor and Employment

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yes-3029367__340-300x158The United States District Court for the District of New Jersey recently issued a decision which illustrates some of the weaknesses in both Federal and New Jersey Employment law, particularly Title VII of the Civil Rights Act of 1964 and New Jersey’s Law Against Discrimination.  Our attorneys represent both employers and employees in employment law, and this issue is of utmost concern to us.

The decision was in the case of Axakowsky v. NFL Productions, LLC, d/b/a NFL Films.  In that case, Nadia Axakowsky sued NFL Productions, LLC, for sexual harassment under Title VII of the Federal Civil Rights Act of 1964 and New Jersey’s Law Against Discrimination.  The judge dismissed the case on summary judgment, ruling that Axakowsky was an independent contractor and therefore was not protected by either law.

The judge undertook a detailed analysis under federal case law interpreting Title VII.  Culminating with the United States Supreme Court’s decision in Nationwide Mutual Insurance Company v. Darden in 1992, the federal courts have developed a test to determine whether a worker classified as a contractor is in reality an employee entitled to protection under Title VII.  The judge went into detail examining all the factors in the relationship, and determined that Axakowsky was in reality a contractor, not an employee, and therefore not entitled to protection under Title VII.  Without going into detail, given that Axakowsky worked only one and a half hours per week as a voice-over artist and continued to audition for and accept other work, the analysis was in all likelihood correct.

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silhouette-3299358__340-300x274As previously discussed here, on May 2, 2018, New Jersey’s Governor, Phil Murphy signed into law New Jersey’s Paid Sick Leave Act (the “Act”).  The Act took effect on October 29, 2018.  The New Jersey Department of Labor and Workforce Development (“NJDOL”) issued proposed regulations to further address the employees’ rights and employers’ obligations under the Act.

Below is a list of several areas where the proposed regulations provided additional guidance to the Act itself:

1. Exempt Employees under the Act.

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creative-signstop-age-discrimination-260nw-520754950-300x215Amazingly, despite the law being clear for many years that age discrimination in employment is illegal, and despite the fact that both research and experience have shown the value of mature workers, age discrimination against older employees continues to be widespread in New Jersey and the country at large.  Both the Federal Age Discrimination in Employment Act and New Jersey’s Law Against Discrimination provide strict prohibitions against employers and supervisors discriminating against older employees.

Sometimes, however, the boundaries of these laws are unclear, and guidance from the Courts is required.  On November 6, 2018, the United States Supreme Court issued an important decision affecting the rights of state and local government employees under the Age Discrimination in Employment Act.

The Mount Lemmon Fire District Case and the Age Discrimination in Employment Act

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we-566326__340-300x135On June 27, 2018, the United States Supreme Court issued an important employment law decision in the case of Janus v. American Federal of State, County and Municipal Employees (“AFSCME”). Prior to Janus, the general law was that public sector unions (i.e. unions comprised of governmental employees) could collect fees from employees even when the employee did not want to join the union. The prior law was set in the case of Abood v. Detroit Board of Education,a prior United States Supreme Court case from 1977.

In Abood, the Court held that a public employee could still be required to pay union dues to cover collective bargaining, contract administration, and grievances even if they refused to join the union. The employee could only opt out of paying a portion of fees which were used for political purposes. Much of the reasoning for that holding was that public employees would benefit from union activities and thus should have to pay for such activities; however they did not need to pay for ideological or political support which the employee did not support. Being forced to make donations to political candidates through mandatory union dues was found to be a violation of First Amendment rights.

However, the Janus ruling changed that long-followed law. Janus argued that everything a public-sector union does (including bargaining for wages) is inherently political because it involves the use of taxpayer money, and therefore all mandatory union dues protected by the First Amendment. One concern is that this could potentially have a negative effect upon democratic political support where unions are generally very active in supporting candidates.

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autumn-house-3689939__340-300x159Our employment attorneys represent applicants who have been removed from lists of eligibles for Civil Service positions for a variety of reasons including disqualification for failing background check, failing to maintain residency, and psychological and medical disqualification.

When applying for a Civil Service position, one requirement that may get overlooked by a potential applicant is the residency requirements for that position within a specific Civil Service jurisdiction.  All open competitive examination announcements should state the residency requirements for that position and, unless otherwise specified, that these requirements must  be met until the announced closing date and/or as of the date of the appointment.  N.J.A.C. 4A:4-2.11(a).

N.J.A.C. 4A:4-2.11(b) defines residence as a single legal residence.  Factors for determining an individual’s residence for local service have been developed through N.J.A.C. 4A:4-2.11(c) and discussed in cases such as In the Matter of Roslyn L. Lightfoot (MSB, decided January 12, 1993) and In the Matter of James W. Beadling (MSB decided October 4, 2006.)  These factors include:

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Our employment law attorneys represent public employees in all phases of their employer-employee relationship.  We regularly represent civil service employees in appealing the imposition of discipline.  One of the bedrock principles of New Jersey civil service employment law is the concept of “progressive discipline.”

Background

New Jersey has a long history of government employment decisions being made for political reasons – this is, after all, the state of Frank “I Am The Law” Hague.  That is why New Jersey Legislature established the civil service system in 1908 to remove political influence, favoritism, cronyism and nepotism from decision making in the hiring, firing and discipline of New Jersey government employees.  Today, the Civil Service Act and the regulations adopted by the Civil Service govern hiring for employees of the State of New Jersey, twenty of New Jersey’s twenty one counties, and many of its municipalities, boards and commissions.  For the State of New Jersey then, and the local governments which have adopted the civil service system, employee discipline is governed by civil service.

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supreme-administrative-court-3565618_960_720-300x200All state employees, and the majority of state and local employees in New Jersey, are governed by the New Jersey’s civil service laws.  In the case of In the Matter Hendrickson, The New Jersey Supreme Court recently issued a landmark decision on the level of deference given by courts to decisions by administrative law judges in appeals of employer discipline by civil service employees.

Discipline at the Employer Level

New Jersey’s Civil Service Act and the regulations adopted by New Jersey’s Civil Service Commission govern disciplinary procedures in state government, and in the local and county governments which have adopted the civil service system.  When a civil service employee receives discipline, she will be given a Preliminary Notice of Disciplinary Action, known as a PNDA or Civil Service Commission Form 31-A.  He will then be given the opportunity for a hearing by his employer in which he can contest the charges against him, or argue that the level of discipline is too severe.  After the hearing, if the employer decides the employee was guilty of the offense charged and that discipline is warranted it will issue a Final Notice of Disciplinary Action, known as a FNDA or Civil Service Commission Form 31-B.

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yes-3029367__340-300x158The United States Court of Appeals for the Third Circuit recently issued an important decision on the law of sexual harassment in the case of Sheri Miransky versus Susquehanna County and Thomas Yadlosky, Jr.  The Third Circuit hears appeals from the Federal District Courts of New Jersey, Pennsylvania, Delaware and the Virgin Islands.  Its decisions are binding on questions of federal law in New Jersey.  The only higher court in the nation is the United States Supreme Court.

The Facts

The facts are long, but generally speaking Sheri Minarsky suffered from years of significant sexual harassment by her supervisor.  She did not complain for several years because she feared retaliation, which the supervisor threatened, and because she saw that upper management knew of his harassment against other employees and did nothing.  Finally after four years she did complain, and her supervisor was fired.

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love-3365338__340-300x191On May 2, 2018, New Jersey’s governor, Phil Murphy signed into law New Jersey’s Paid Sick Leave Act.  This new Act requires employers to provide up to 40 hours of paid sick time to covered employees each year (excluding most construction employees under a collective bargaining agreement and public employees who already have paid sick leave).  New Jersey is now the tenth state to enact such legislation.

In 2008 New Jersey enacted the Family Leave Act.  That law required employers to provide for up to six weeks of benefits to care for sick family members or newborn babies.  However, it does not cover the employee’s own individual sick time and only applied to employers with fifty or more employees.

In 2013, the State enacted the Security and Financial Empowerment (“SAFE”) Act which required employers to permit twenty days of unpaid leave without taking disciplinary action if the employee was a victim of domestic violence.

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New Jersey’s Civil Service System is designed so that government employees are hired based on their merit, not on nepotism, favoritism, cronyism, bribery or political connections. New Jersey’s Civil Service laws and regulations do this by setting up a system where candidates are tested and graded objectively against other applicants. They are then ranked according to their scores and other qualifications, and hired based on their rank. This testing and ranking system is administered by the New Jersey Civil Service Commission (formerly known as the Merit System Board).https://www.newjerseylawyersblog.com/wp-content/uploads/sites/195/2018/07/police-officer-sil.-300x254.png

One of the areas where merit is most critical is in the selection and hiring of law enforcement officers, given the vast powers and responsibilities our society places on their shoulders. As a result, the hiring process is significantly more intense than for the hiring of other civil service employees. In addition to a written test, there are also physical examinations and intense background screening.

All of these screening criteria can – and must be – objectively reviewed. However, one additional area of the law enforcement screening process can allow an examiner’s subjective bias to creep through into the testing results. This area is the psychological screening for candidates for New Jersey law enforcement jobs. Obviously this is a legitimate and important line of inquiry necessary before giving young men and women weapons and the power to arrest people. However, subjective biases can influence an examiner’s reading of the examination results. Continue reading