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Articles Posted in Labor and Employment

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Qualified candidates for permanent, career, classified New Jersey Civil Service veterans-300x200employment who meet the Civil Service definition are eligible to receive a veterans and disabled veterans preference, which increases their ranks on eligible lists.  The courts have explained that the purpose of the preference is to “reward those whose military commitments, commissioned or enlisted, were of such a nature and duration as to interfere substantially with an individual’s civilian status.”

Veterans Eligible for Preference

Not all “veterans”, as the term is generally used, are eligible for a New Jersey Civil Service preference.  Only “veterans” and “disabled veterans” of certain military operations as defined by the New Jersey Civil Service Act are eligible.   Thus, veterans of some military operations, such as, for example, Operations Earnest Will, Nimble Archer and Praying Mantis, in the Persian Gulf Region in 1987 and 1988, are excluded.

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Collectively, New Jersey state and local governments are the largest employer in the State.  Most of these jurisdictions are governed by the New Jersey Civil Service Act.  In New Jersey Civil Service jurisdictions, hiring, firing, promotion and discipline is governed by the Civil Service Act and Regulations.  This makes the Civil Service System one of the most important elements in New Jersey employment law.

The Use of Eligible Lists in Hiring and Promotion

Candidates for initial hiring and promotion in the permanent, career, unclassified civil service are selected and appointed based on their civil-service-jobs-300x200placement on eligible lists (also referred to as “certifications”).  There are five types of eligible lists: Open competitive lists, promotional lists, regular reemployment lists, police and fire reemployment lists, and special reemployment lists.

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The key to New Jersey Civil Service hiring and promotion is the examination.  The State Constitution and New Jersey Civil Service Act require merit-based appointments based, whenever possible, on examinations.

Announcements.  The New Jersey Civil Service Commission is responsible for administrating examinations which fairly test applicants’ mulitple-choice-exam-300x200knowledge, skills and abilities for the job.  Announcements are posted on the Commission’s website, and provided by the employer. Announcements include title, salary information, admission qualifications, filing information, and duties and responsibilities. No unannounced requirements can be considered.  Applications must be filed by the announced date.  The applicant must be a resident of New Jersey and the specified local jurisdiction, unless a different residency requirement is specified or there are not enough available qualified residents.  Applicants for municipal law enforcement or firefighter positions must be under 35 for open competitive examinations, except that applicants under 45 may subtract prior law enforcement experience to meet the 35 year age requirement.  Veterans may subtract their service from their age to determine eligibility.

Types of Examinations.  Examinations may be written; oral; performance evaluation; physical performance tests; assessment exercises; and evaluation of education, training and experience.  The goal is to objectively measure an applicant’s fitness and merit.  Thus, while subjectivity in developing an examination is not forbidden, it must be limited.

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Criminal charges against public employees can have serious consequences under New Jersey civil service law.  In this post, we’ll examine gavel-300x200some of those consequences.

Suspensions of New Jersey Civil Service Employees While Criminal Charges Are Pending

First, if a New Jersey civil service employee is facing criminal charges, she can be suspended while the charges are pending.  The employee must be served with a preliminary notice of disciplinary action (PNDA). The PNDA must advise her that she may be subject to being fired if the charges are upheld, and that she has the right to consult with an attorney.  The employee may request a hearing about the suspension. If no request is made within five days the appointing authority may issue a final notice of disciplinary action (FNDA). If the employee is charged with a third degree crime or higher, if she is charged with a crime of the fourth degree on the job, or if the charges are “directly related to the job,” the employee may be suspended indefinitely until the charges are resolved.

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New Jersey Civil Service law establishes procedures for hiring and promoting government employees in New Jersey state and local statehousejpg-daf3a85399187d6b-300x200government civil service jurisdictions.

Appointments

In Civil Service, “appointment” means getting a job, whether through initial hiring, promotion, transfer or otherwise.  All initial and subsequent appointments must be submitted for review and approval of the New Jersey Civil Service Commission.  The Commission will notify the employer of whether it has approved or disapproved the action, and the reasons for any disapproval.  The employer then provides written notice to the affected employees.

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How a New Jersey public employment position is classified can have enormous effects on an employee’s rights.  This blog describes some of the details about how the New Jersey Civil Service Commission classifies New Jersey Civil Service jobs, and what the consequences of thoseNJ_State_House-300x200 classifications are.

 
Some terms

Under New Jersey Civil Service Law, jobs are classified by “titles.”  Titles are based on duties, responsibilities, and qualifications.  “Career service” employees serve in “classified” titles, “unclassified employees” serve in “unclassified” titles.

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In an important decision interpreting New Jersey employment law, the Supreme Court ruled in the case of Melnyk versus the Delsea Regional High School District that analyzing whether a position is eligible for tenure protection depends on the statutory requirements, not teacher-300x200on how the employer chooses to label it.

Paula Melnyk was a long-time, tenured, full-time, certified, special education and English teacher during the day for the Board of Education of the Delsea Regional High School District, since 1991.  From 2002 through 2015, except for a break in the 2009-2010 school year, she also taught at in the Board’s BookBinders Program.  This was an evening program for students who had been removed from the traditional daytime classroom for behavioral issues, or who otherwise could not participate in the regular school program.  State law required the Board of Education to provide this service, whether through its own staff and facilities, or by agreement through another district.  The Board chose to provide the services itself.

The Board characterized Melnyk’s work in this program as “extra-curricular,” and therefore not eligible for tenure.  Had it been a position eligible for tenure, Melnyk would have earned it, since even with the break in 2009-2010, she had more than the three years and a day then required to earn tenure (that time frame was increased in 2012 by the TEACHNJ Act, but it was not applicable when Melnyk would have earned tenure).

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Discipline is a major component of New Jersey’s Civil Service system.  Discipline under New Jersey Civil Service law is either “major” or “minor.”

Major Discipline

The main procedural consequence of the difference major discipline and minor discipline is that major discipline can be appealed to the New Jersey Civil Service Commission, while minor discipline can only be challenged in the Superior Court of New Jersey.  Major discipline is civil-servcie-1800s-300x165defined as a suspension or fine of more than five days.  Major discipline includes removal, disciplinary demotion, and suspension or fine for more than five working days.  The touchstone for all civil service disciplinary procedures, however, is that “The theme of fairness threads its way through the notice, hearing, and right of appeal provisions of our Civil Service Act, and finds particular pertinence in those sections requiring that the causes for [discipline, including] removal constituting ‘just cause’ be enumerated with specificity.”

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No discussion of New Jersey employment law would be complete without New Jersey’s Civil Service System, which governs all state government employees, and employees of twenty of New Jersey’s twenty-one counties, and the majority of its municipalities.

As far back as 1961, the Appellate Dnew-york-county-courthouse-1540991328RMS-300x200ivision gave a cogent summary of the disciplinary procedures in New Jersey’s Civil Service Act, which is worth quoting ver batim.

Disciplinary proceedings against a civil servant are not only an attempt to determine the status of a particular individual; they are a statutorily authorized action to redress a wrong committed against the people of the State by one in whom the public trust has been officially reposed. The proceedings are therefore penal, or at least Quasi-penal, in nature, and deeply embedded constructional principles, supported by fundamental notions of fairness, dictate that in such an action the statute or regulation defining the alleged violation be construed to comport with the fair meaning of the language used. The theme of fairness threads its way through the notice, hearing, and right of appeal provisions of our Civil Service Act, and finds particular pertinence in those sections requiring that the causes for removal constituting ‘just cause’ be enumerated with specificity. The governing consideration, that one be fairly and completely advised of the nature of the charges against him, loses all effectiveness if it is not reinforced by a requirement that the proscribed activities and contingencies warranting disciplinary proceedings be set forth with reasonable particularity and construed accordingly.

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Truck, Transportation, Vehicle
In 2016, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (“FMCSA”) announced a new rule establishing a database for information regarding violations of drug and alcohol testing regulations by commercial motor vehicle drivers. While the rule went into effect in 2017, the requirement for FMCSA-regulated employers to begin searching and reporting on this database did not take effect until January 6, 2020.

Therefore, regulated employers are now required to report information regarding any violations of the DOT’s drug and alcohol regulations through the FMCSA’s database (called “Clearinghouse”).  This will allow employers to identify drivers who are prohibited from operating a vehicle because of prior violations.

“Regulated employers” include employers in the trucking or transportation industry who either hold a Commercial Driver’s License (“CDL”) themselves or whose employees hold a CDL, and who operate a commercial motor vehicle(s) in any state which has (1) a gross vehicle weight of 26,001 pounds or more, or (2) is designed to carry 16 or more passengers (including the driver), or (3) is involved in transporting hazardous materials.