Articles Posted in Labor and Employment

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old-books-436498__340-300x200A problem our employment attorneys  frequently encounter is complaints of nepotism in the hiring and promotion of public school teachers.  While the hiring of relatives is not per se illegal in New Jersey public schools, there are significant restrictions on it.

The New Jersey Legislature and the New Jersey Department of Education have passed restrictions limiting nepotism based on the Legislature’s spending power.  At the local level, restrictions on nepotism are a requirement for the receipt of state aid.  Thus, while nepotism is not “illegal,” anti-nepotism policies are required for the receipt of state aid.  Since almost all New Jersey local public schools receive state aid, the restrictions on nepotism are virtually universal.  The New Jersey Department of Education’s regulations apply to school districts, charter schools and county vocational school districts.  These board of education (or trustees for charter schools) must adopt anti-nepotism policies as a condition for receiving state aid.

The policies adopted under these rules restrict employment practices concerning “relatives” and “immediate family members” of board members and chief administrators.  In general, their relatives cannot be employed by the same school district or charter school.  Likewise, a chief school administrator may not recommend her own relatives or those of a member of the board of education.

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council-of-state-535721__340-1-300x103The financial burden of a civil service appeal discourages many employees from filing.  However, a successful employee may be able to recover the attorneys fees she spent on the appeal.  Our attorneys handle civil service appeals for all of New Jersey’s Public Employees, such as police officers, teachers, firefighters, and administrative persons.  Because we are concerned about the impact on our clients’ pocketbooks, we are always looking to see if we can shift the financial burden to the public employer.

This is important to the individual employee, of course, but also to the public at large.  America is a democracy, and one of the key points to any form of a democracy is access to the government.  Since the judiciary is one of the coequal branches of  government, access to the court house is an important right.  Shifting the costs of litigation to the employer after an employee’s successful appeal is one way to keep the doors to justice open to less well-off employees.

This principal was applied recently by in the case of In re Anthony Hearn, heard by the Appellate Division of the Superior Court of New Jersey.  Anthony Hearn was a certified public accountant in the New Jersey Office of Compliance Investigations.  He was an “unclassified” employee of the State of New Jersey.  Hearn was demoted for allegedly violating certain provisions of the State’s anti-discrimination policy.

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supreme-court-building-1209701__340-300x200Our employment attorneys represent New Jersey Civil Service employees in appeals of disciplinary action.  Recently, New Jersey’s Supreme Court had the opportunity to clarify some of the circumstances in which a government employee can obtain a waiver of the rule that he forfeit his job when convicted of a criminal offense.

In the case of Flagg v. Essex County Prosecutor, the New Jersey Supreme Court had the opportunity to review the effect of a public employee’s conviction for a disorderly persons offense (the equivalent of a misdemeanor) on their government job.  New Jersey’s forfeiture law requires that employees forfeit their public employment if the conviction is for a crime (the equivalent of felony)  of dishonesty, is required by the New Jersey Constitution, or is a disorderly persons offense “involving or touching such office, position or employment.”  However, a subsection of this law provides an exception.  This provides that “forfeiture or disqualification… which is based upon a conviction of a disorderly persons or petty disorderly persons offense [misdemeanors] may be waived by the court upon application of the county prosecutor or the Attorney General and for good cause shown.” The law is silent about what standard a prosecutor should use to review such applications.

Flagg was a maintenance worker for the City of Newark.  He was convicted in municipal court of illegal disposition of solid waste, a disorderly persons offense.  He did this in the course of his job at the direction and in the presence of his supervisor.  He was sentenced to a six month loss of his drivers license, a $5,000 fine, and five days of community service.  He was not sentenced to jail, nor did the statute provide for jail for this solid waste violation.

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stock-photo-close-up-of-old-english-dictionary-page-with-word-civil-service-408848104One of the prime methods of hiring, firing, promotion and discipline of  public employees is New Jersey’s civil service.  Attorneys from our firm represent employees in appeals from actions by their civil service employers.  One of the most significant issues in the civil service hiring process our employment attorneys have encountered is when government employers exercise the “Rule of Three.”

New Jersey’s Constitution requires that hiring in the civil service system must be based on merit and fitness, and that a candidate’s merit and fitness be determined by a competitive examination.  The system put in place by New Jersey’s Civil Service Act and the regulations drafted by New Jersey’s Civil Service Commission provide that impartial tests which examine a candidate’s competency are announced, qualified candidates take the test, and then the Civil Service Commission creates a list of “eligibles” from which the candidates must be hired.  The highest scorers will receive the top spot on the list.  Candidates are to be hired in accordance with their place on the list.

However, an exception applies to this process.  Public employers may use the “Rule of Three” to pass over the highest scorer.  In the recent case of In re Foglio, New Jersey’s Supreme Court had the chance to examine the Rule of Three.  The first thing the Supreme Court did was to explain what the Rule of Three was all about.  The Supreme Court explained: “Under the Rule of Three, after a list of at least three candidates is certified, the appointing authority has the discretion to select from among the top three candidates in filling a vacancy. The Rule of Three recognizes employment discretion and seeks to ensure that such discretion is not exercised in a way inconsistent with `merit’ considerations.  While ensuring that competitive examinations winnow the field of candidates, the Rule of Three does not stand as ‘an immutable or total bar to the application of other important criteria” by a government employer’.”

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employment-300x200Background: New Regulations Adopted

In 2014 the United State Department of Labor issued new regulations governing overtime exemptions.  The regulations did not change the main overtime exemptions, but it did raise the salary threshold for them to apply.

Existing Exemptions

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dollar-1889027__340The Fair Labor Standards Act (“FLSA”) is a federal statute enacted in 1938 with the goal of setting national standards for employees, including minimum wage, overtime requirements, child labor restrictions, and other protections.   Our employment attorneys represent management and employers in litigation under FLSA violations and litigation about its state counterpart, the New Jersey Wage and Hour law.  Our

Many changes have been made to the FLSA over the years to try to keep up with the changes in inflation the socioeconomic climate of the country.  On March 13, 2014, President Obama published a Presidential Memorandum directing the DOL to review and revise the regulations protecting workers through minimum wage and overtime standards.  In May of 2016, the United States Department of Labor (“DOL”) responded by updating the FLSA to extend overtime pay protections and minimum salaries – which would mark the first significant change in 40 years.

The rule sets a minimum salary requirement of $47,476 for salaried workers – which more than doubled the prior minimum of $23,660. Generally, employees are paid on an hourly basis and then paid one and a half times their regular hourly pay for all hours worked in excess of 40 hours per week.  However, certain employees are “exempt” from the hourly pay and overtime requirements.  Some of the most comment exemptions are for: professionals (lawyers, accountants, engineers, etc.) executives or administrators (managers, officers, etc.), and commissioned salespeople.  For employees not being paid on commission, these exempt workers are generally paid an annual salary as opposed to an hourly wage.

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council-of-state-535721__340Our employment law attorneys represent government employees in New Jersey Civil Service appeals.

One of the most criticized but least understood areas of New Jersey employment law is the Civil Service System.  Employers complain that New Jersey’s Civil Service System makes it too difficult to fire employees who are not carrying their weight.  Employees, especially prospective employees, complain that civil service makes it too difficult to obtain jobs.  However, the Civil Service System is there for an extremely important reason.

New Jersey – gasp – has a history of corruption and political patronage when it comes to awarding government jobs, and while the old civil service system helped, it did not eliminate it.  After the long reign of Frank (“I am the law”) Hague in Jersey City, New Jersey said enough is enough.  It held a constitutional convention, and the New Jersey Constitution of 1947 provided that civil service selections and appointments had to be based on merit, determined by test if possible.  This was to take politics, corruption, nepotism and favoritism out of employment decisions so that merit was the only reason employees obtained or kept their jobs.

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skills-835747_960_720In New Jersey, obtaining a teaching certificate is a difficult task, requiring a great deal of credentials.  For the individuals who are issued a teaching certificate, it is a testament to the individual’s dedication, commitment, and passion for teaching.  Therefore, if your certificate is at risk of being revoked or suspended, it is important to know your rights and whether to challenge such a determination.

The State Board of Examiners may revoke, suspend or deny a teacher’s certificate for many grounds set forth in the New Jersey Department of Education’s regulations in the New Jersey Administrative Code, N.J.A.C.§6A:9B-4.4.  One of the grounds that the State Board of Examiners may revoke, suspend or deny a teaching certificate is on the basis of “conduct unbecoming a teacher.”  Like many legal terms, “conduct unbecoming a teacher” is inherently  broad and encompasses a wide variety of teacher activity.  Due to its broad nature, a look into how courts have defined and analyzed “conduct unbecoming a teacher” is important if your certificate is being revoked, suspended or denied to determine whether to appeal the revocation or suspension.

Courts have defined “conduct unbecoming a teacher” in multiple ways including :

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orthosis-449685__180
New Jersey employment law has long protected employees against discrimination in employment. New Jersey was one of the first states to do so, passing the Law Against Discrimination in 1947.  One of the things that New Jersey’s Law Against Discrimination protects employees from is discrimination because of disabilities.  This means that employers are prohibited from doing three things.  First, employers cannot take adverse actions, such as firing or demotion, against employees because of their disabilities.  Second, employers cannot harass or create a hostile work environment for employees because of their disability.  Finally, employeer cannot fail to make reasonable accommodations so that employees can do their job even with their disabilities.

When an employer violates New Jersey’s Law Against Discrimination, employees may sue their employees.  If they are successful they can recover their economic damages (such as lost pay), compensation for their emotional distress, the attorneys fees and litigation expenses they spent in the lawsuit, and sometimes punitive damages.  Of course, the employees must first prove that the employers violated the New Jersey Law Against Discrimination, and then they must prove their damages.

Proving that an employee had a disability is part of the employee’s required proofs.  In many cases there is no dispute because the disability is apparent – if an employee is missing a leg the disability is obvious, and in many cases the disability is admitted.  However, in many cases the disability is neither apparent nor admitted by the employer.  How then to prove that the employee had the disability?  In many cases, this requires testimony from a doctor.

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frankfort-105591_960_720The Supreme Court of the United States has recently issued an opinion holding that, even perceived speech or associations (as opposed to just actual speech or associations) are protected by the Civil Rights Act.

A police officer, Jeffrey Heffernan, working in Paterson, New Jersey filed suit seeking redress for his demotion after he had been seen speaking to staff members for a candidate running for mayor and holding a yard sign supporting that candidate.  The candidate was running against the incumbent mayor who had appointed Heffernan’s superiors.  Heffernan was specifically demoted due to his “overt involvement” in the candidate’s campaign.

Unbeknownst to Heffernan’s superiors, Heffernan did not actually support the candidate, but was merely picking up the sign for his ill mother.

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