Articles Posted in Labor and Employment

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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

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workplace-615375__340-300x200The United States Court of Appeals for the Third Circuit, which hears appeals from decisions in the federal courts of New Jersey, Pennsylvania and Delaware, recently issued a major decision interpreting the scope of coverage of the federal Emergency Medical Treatment and Active Labor Act (“EMTALA”). As the Third Circuit explained,

[The] shift from medical emergency management to primary care treatment has resulted in a “grave financial challenge” for hospital administrators. Many of them responded to this economic pressure by engaging in a practice known as “patient dumping.” That term refers to the practice of refusing to offer emergency room treatment to indigent patients who lack medical insurance, or transferring them to other medical facilities before their emergency medical condition has been stabilized. Congress attempted to address this situation by enacting EMTALA. EMTALA imposes certain mandates on hospitals regardless of whether a patient who presents to an emergency room has the ability to pay for treatment.

EMTALA requires hospitals to first examine each patient to determine whether an emergency medical condition exists. “[I]f the examination reveals the patient is suffering from an emergency medical condition, the hospital usually must stabilize the patient before getting into the business of trying to [discharge or] transfer him [or her] elsewhere.”[ A hospital that either (1) fails to properly screen a patient, or (2) releases a patient without first stabilizing his or her emergency medical condition thereby violates EMTALA.

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men-1979261__340-300x200New Jersey has joined nine other states and the District of Columbia in enacting a law to require that employers must provide their employees with paid sick leave.  The law is among the toughest in the nation, and imposes many new requirements on employers.  Below are some of the most frequently asked questions about New Jersey’s Paid Sick Leave Law.

What employers must provide paid sick leave?

Virtually all of them.

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chalk-1551566__340-300x225The Appellate Division of New Jersey’s Superior Court recently addressed a procedural question with significant implications for New Jersey teachers and other teaching staff members fighting tenure charges under the TEACHNJ Act of 2012.

The TEACHNJ Act changed the system for fighting tenure charges.  Previously, a teacher or other teaching staff member would have the right to have their appeals heard before an administrative law judge, who would normally have a trial on the merits of the teacher’s objections and defenses.  The results would then be sent to the New Jersey Department of Education, which could accept or reject the administrative law judge’s findings.  Whatever the outcome, either party could appeal the Department of Education’s decision to the Appellate Division and then to New Jersey’s Supreme Court.  Under the TEACHNJ Act, however, the administrative law process was eliminated, and objections to tenure charges are now heard by a single arbitrator in binding arbitration.  There are only very limited grounds for appeal.

Recently, a teacher had a series of tenure charges filed against him.  He had two separate charges of “inefficiency.”  He then had a later tenure charge of “conduct unbecoming” for allegedly inflicting prohibited corporal punishment on a student.  He objected that the entire controversy doctrine barred the charges because they occurred before the inefficiency charges were decided and therefore they all should have been brought together.