Labor and Employment

Published on: March 16, 2016

Our New Jersey Employment Attorneys Represent Teachers and Other School Employee in Tenure Charges

Fighting Tenure Charges Against New Jersey Teachers

Our New Jersey employment attorneys represent teachers and other school employees in tenure charges, wrongful discharge, harassment and other wrongful treatment.

In 2012, the TEACHNJ Act, pushed through the Legislature by Governor Christie, made major changes to New Jersey’s tenure laws. Among other changes, it revamped the appeal process for New Jersey tenure charges. Instead of having New Jersey Department of Education make the final determination of tenure charges after a fact-finding trial by an administrative law judge, appeals of tenure charges are now decided by binding arbitration. Because of the finality of these arbitration decisions, and the limited grounds for appeal, it is important to have experienced New Jersey employment attorneys representing you.

Published on: November 12, 2015

Counting “Replacement” Time Toward Acquisition of Tenure

by Maurice W. McLaughlin

McLaughlin & Nardi, LLC’s employment attorneys represent teachers in all aspect of employment law. One of the most important areas of New Jersey employment law to teachers is the requirements for acquiring tenure.

Under the TEACHNJ ACT of 2012, acquisition of tenure went from three years to four years. There are several ways to meet this requirement. First, a teacher can work in her position for four full consecutive calendar years. Second, the teacher can serve for four consecutive school years, and begin employment in the following year; the common way this is expressed is “four school years plus a day.” Third, a teacher can attain tenure if her total time worked equals greater than four school years within any five consecutive school years. This final method allows a teacher to take time off to care for a baby without having to re start her tenure clock from day one.

However, there is an exception that provides that certain “time” does not count. New Jersey’s education laws provides that someone who is replacing another employee while that employee is out on a leave of absence, or period of disability or disqualification – a frequent example being a teacher who is hired to replace another teacher out on maternity leave – cannot use that replacement time to count for the acquisition of tenure. This is relatively straightforward in the case, for example, of someone who comes in to replaces a teacher who is out on maternity leave, and then loses her job when the first teacher returns. However, what about someone who is hired to replace a teacher on maternity leave, but then gets another teacher position and stays when mom returns to work? Can she count her original time because she is a permanent employee and her time was continuous, even if the initial time was served as a replacement? This is a far more difficult question for which until recently the courts had not spoken.

However, recently the Supreme Court of New Jersey finally addressed this question straight on. In that case, three teachers were let go by the Bridgewater Board of Education. If the time the spent as replacements for other teachers out on leave, they would have tenure. However, the Board of Education argued that this time should not count under the “replacement” exception to counting time for tenure. The teachers, obviously, argued that since they had been working straight for more than the time required for tenure, it should count. Two had received some form of notice that the time would not count, one did not.
Continue reading

Published on: October 27, 2015

The Use of New Jersey’s Rule of Three in Civil Service Hiring and Promotion

by Maurice W. McLaughlin

McLaughlin & Nardi, LLC’s employment attorneys represent New Jersey civil servants and other public employees.

One of the most vexing issues in New Jersey employment law in the public sector is the “Rule of Three.” New Jersey’s Civil Service laws require that hiring and promotion be based on merit and demonstrated ability, where possible through an examination. After an application is complete, an “eligible list” is promulgated with all of the applicants listed in order of their overall scores. Hiring and promotion must be done in order of rank of their overall scores.

However, New Jersey’s Rule of Three allows the appointing authority to hire or promote from any one of the top three slots for the position, allowing it to skip a higher ranked candidate. This allows the hiring authority a limited degree of discretion in hiring. However, to avoid bias, discrimination, cronyism, nepotism and favoritism, the appointing authority must give a written statement of its “legitimate” reasons.

In the recent case of In re Foglio, New Jersey’s Supreme Court rejected Ocean City’s use of the Rule of Three when it was hiring firefighters. Nicholas R. Foglio, who had been a volunteer fighter, took the civil service test to become a paid firefighter and went through the application process. He was ranked second on the eligibility list. Ocean City hired three new firefighters. It chose the highest ranked firefighter, but skipped Foglio to hire the next two known ranked candidates. Foglio had been a volunteer firefighter for several departments. He had already logged more than a thousand hours. The highest ranked candidate was a student teacher; the third, for whom Foglio was skipped, was a bartender; and the fourth, for whom Foglio was also passed over, was a lifeguard. Ocean City stated that its reason for invoking the Rule of Three to pass over Foglio was that the two lower ranked candidates “best meet[] the needs of Department,” without any further elaboration. The Supreme Court explained that while the applicant still bore the burden of showing that the appointing authority’s reasons are not legitimate, but that burden is only triggered after the appointing authority gives an adequate – and real – statement of reasons for the action. when exercising his right to challenge the appointing authority’s exercise of the Rule of Three, he can’t reasonably be expected to do so without a detailed statement of reasons. The Court explained that while the statement of reasons not need be detailed, it had to give fair notice of the reasons. It could not just give a conclusory and unrevealing statement. As the Court explained, Ocean City could just have said “we liked them better” and it would essentially been the same thing without a statement giving notice of actual, legitimate reasons. The Court held that the appointment of the lower ranked candidate is “presumptively in violation of the principles of merit and fitness.” Thus, while the applicant bears the burden of showing that the appointing authority’s reasons are not legitimate, that burden is only triggered after the appointing authority gives an adequate – and real – statement of reasons for the action. The Court therefore remanded the case. It ordered Ocean City to provide a statement of reasons, which Foglio could then appeal. In re Foglio, 207 N.J. 38, 45-46 (2011).
Continue reading

Published on: July 24, 2015

Why Civil Service Matters

by Maurice W. McLaughlin

Our employment attorneys represent New Jersey public employees, such as police officers, firefighters, public works workers, professionals and others, who are covered by the civil service system. We hear many complaints about civil service: The rules are too rigid; it makes it too hard to fire an employee; it makes it too hard for an employee to find a job; discipline is either too hard or too easy to impose, depending on your point of view; the rules are too complex and burdensome.

Many of these complaints are true. However, they miss the point. The New Jersey civil service system is there for a reason. New Jersey has a long history of corruption, cronyism, bribery and nepotism. While there are many funny stories from this history, from Frank Hague’s “I am the law” quote to the recent closing of the George Washington Bridge, this history is awful. It has a terrible effect on government.

Hiring and promotion based on politics, bribes or “who you know” means that merit is removed from the equation. When merit is removed, government operations and the government’s services to its citizens inevitably suffer, and the cost of providing those services therefore increases.

To remedy this, New Jersey adopted the Civil Service system over a century ago in 1908. Indeed, in a wave of reform after World War II, and in reaction to the corrupt local government under Depression Era “bosses” like Hague, New Jersey passed the Constitution of 1947 which overhauled New Jersey’s state and local government. The drafters of the 1947 Constitution enshrined the principal that hiring and promotion should be based on merit, not politics, nepotism, cronyism or bribes. The Constitution specifically provides that “Appointments and promotions in the civil service of the State, and of such political subdivisions [counties and towns] as may be provided by law, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive….” Indeed, this is why civil service is often referred to as the “merit system.”
Continue reading

Published on: March 19, 2015

Effect of Teachers’ Termination or Early Resignation

by Maurice W. McLaughlin

Effect of Teachers’ Termination or Early Resignation
Our employment attorneys represent New Jersey teachers and other public employees. One issue that commonly arises is the suspension or revocation of a teacher’s license when she leaves without the required notice or is terminated for cause. Our attorney’s experience is that both leaving early and termination for cause can have drastic and severe consequences when reported to the Department of Education. It may render the teacher unemployable.

Leaving Early
Normally a teacher is required to give 60 days notice before she quits. However, there are many times when a teacher may want to leave before the normally required 60 day notice. For instance, she may have had a better offer in another district or she may just need a break. The reasons are many. However, there could be potentially severe consequences which result from this decision. A teacher who leaves employment prior to the expiration of her employment, generally requiring at least 60 days notice if prior to the end of the academic year, is deemed guilty of misconduct, and the Commissioner may suspend her certificate for up to one year.

Termination
When an employee is faced with termination, she may choose not to avail herself of her remedies if the board of education allows her to resign rather than be fired. Local boards can use this as a tool to get rid of teachers they don’t want but don’t have grounds to validly fire because the consequences of termination for cause are so dire that the teacher may not want to chance it. This is grossly unfair by the boards, but it is a common tactic.

Revocation and Suspension
The New Jersey Department of Education’s Board of Examiners has the power to revoke or suspend a teacher’s certificate because of demonstrated inefficiency, incapacity, conduct unbecoming a teacher or “other just cause.” The phrase “other just cause,” in turn, is defined to include offenses under the New Jersey’s “forfeiture statute,” which requires that a government employee’s employment be terminated upon conviction of certain offenses. These offenses include crimes of dishonesty, crimes of the third degree or above, crimes touching on the certificate holder’s office or when required by the Constitution. Other laws further define “just cause” to include endangering the welfare of a child or incompetent person; abuse, abandonment, cruelty and neglect of a child; resisting arrest; offenses involving the manufacture, transportation, sale, possession, distribution or habitual use of a controlled dangerous substance or drug paraphernalia; a crime involving the use of force or the threat of force to or upon a person or property including, but not limited to, robbery, aggravated assault, stalking, kidnapping, arson, manslaughter and murder; any crime of whatever degree relating to firearms, other dangerous weapons and instruments of crime; any crime of the third degree; any crime of the fourth degree where the victim was a minor; recklessly endangering another person; terroristic threats; criminal restraint; luring or enticing child into motor vehicle, structure or isolated area; causing or risking widespread injury or damage; criminal mischief; burglary; usury; threats and other improper influence; perjury and false swearing; resisting arrest; escape; bias intimidation; or conspiracy to commit any of these crimes.
Continue reading

Published on: March 16, 2015

New Jersey Supreme Court Weighs In On Who Is An Employee and Who Is An Independent Contractor Under New Jersey Employment Law

by Maurice W. McLaughlin

The New Jersey Supreme Court recently clarified an employment law issue which has been vexing employment lawyers for decades. In its recent landmark decision in Hargrove versus Sleepy’s LLC, the Supreme Court laid out the rules for determining when a worker should be considered an employee under different New Jersey employment laws. The specific laws it addressed governed the payment of wages and overtime to employees.

This is an extremely important issue for both employers and employees – it normally determines whether a worker will get benefits such as health insurance and 401(k), and whether the worker or employer will be responsible for paying the worker’s payroll taxes, not to mention overtime.

Background

Published on: August 29, 2014

Payroll Withholding Tax Basics for Both Employers and Employees

by Pauline M.K. Young

https://www.youtube.com/watch?v=l_4KZ7EDN0w

Requirements regarding withholding payroll taxes are something that every business owner should be familiar with, particularly businesses which handle their own payroll internally (as opposed to outsourcing to a payroll company). Employers are almost always required to withhold taxes from employees’ salaries, wages, and other compensation, such as commissions or bonuses.

While many people think of paying income taxes as what they do when they file tax returns by mid-April of each year, income taxes are actually considered a “pay as you go” tax. The tax returns at the end of the year then adjust the withholdings calculation depending on various other considerations such as deductions, marital status, and other income.

The employer withholds a certain amount of taxes from each paycheck which the employer is then required to turnover to the government.

There are both federal withholdings and New Jersey state withholdings.
Continue reading

Published on: May 30, 2014

New Jersey’s Anti Retaliation Laws

by Boris Peyner

New Jersey employees in the private sector and many in the public sector are known as at-will employees. This means that employees may be fired at any time, for any reason, or for no reason. Employees, however, cannot be fired for retaliatory reason. New Jersey has expansive laws that protect employees from their employers’ retaliatory conduct, including termination.

Employers can retaliate against employees in many different forms. Employers can retaliate against employees through harassment. For example, employers may try to reprimand, demote, or pass over for promotions employees who raise certain complaints or file certain claims. Another form of retaliation is firing an employee for engaging in certain activity.

However, not every termination or reprimand allows employees to have an actionable claim against employers. Instead, employees must engage in certain protected activity and the retaliatory conduct must be the motivation for the employees’ protected activity.

New Jersey’s Conscientious Employee Protection Act also known as New Jersey ‘s “Whistleblower” law makes it illegal for employers to retaliate against employees who object to or refuse to participate in an activity which the employees reasonably believe are illegal, criminal or fraudulent, or violates a clear mandate of public policy relating to public health, safety, welfare or the environment. Employers which retaliate against employees who object or refuse to participate in this type of activity can subject themselves to a lawsuit and significant consequences.
Continue reading

Published on: April 11, 2014

New Jersey’s Employment Laws Which Protect Against Sexual Harassment

by Boris Peyner

New Jersey’s employment laws protect employees from workplace sexual harassment. People accused of sexual harassment may be subject to individual liability under both civil and criminal laws. Employers may also be found liable for sexual harassment because of their employees’ actions.

Sexual harassment does not need to be sexual in nature. It can take at least two forms: (1) hostile work environment, and (2) “quid pro quo” sexual harassment. Hostile work environment sexual harassment is conduct that has been directed towards someone because of that person’s sex. For example, harassment that is based on stereotypes about women or men can be construed to be sexual harassment. Of course, harassment that is sexual in nature is sexual harassment. Therefore, inappropriate sexual propositions, jokes or advances can be construed sexual harassment and result in a civil lawsuit. This type of conduct is prohibited.

“Quid pro quo” sexual harassment is also prohibited. Quid pro quo sexual harassment is the demand by an employer, manager, or supervisor that terms and conditions of employment, such as raises, promotions, or simply keeping the employee’s job, in return for sexual favors. For example, if a boss requires an employee to have sex or enter into a romantic relationship to keep her job, get a promotion or avoid discipline, then the employer could be liable for quid pro quo sexual harassment.

Employees complaining about workplace sexual harassment are protected from retaliation. In fact, it is a violation of New Jersey’s employment laws for employers to retaliate against employees for their complaints about behavior that that employees reasonably believe is sexual harassment.

Simply, employees should not have to endure the stress or indignity of inappropriate sexual conduct in the workplace. However, not every type of workplace conduct based on gender is unlawful. Instead, to have an actionable claim of sexual harassment the conduct complained of must be serious enough or frequent enough to make a reasonable person believe that her working conditions are hostile or abusive.
Continue reading

Published on: April 9, 2014

Pregnancy Discrimination Under New Jersey’s Law Against Discrimination

by Pauline M.K. Young

New Jersey’s Law Against Discrimination (the “LAD”) covers a wide variety of activities and relationships, including employment relationships. It makes it unlawful to discriminate against an employee or potential employee on the basis of race, national origin, nationality, age, gender, sexual orientation, religion, and several other specified classifications.

In January of 2014, Governor Christie signed into law a bill (S2995) that both protects pregnant employees from discrimination and requires employers to provide pregnant employees with reasonable accommodations so that they can continue working. The Act applies both to women who are currently pregnant and those who have recently given birth. Therefore, if the pregnant woman, or woman who recently gave birth, requires accommodations in the form of, for instance, a modified schedule, additional breaks, or less strenuous work duties, as long as those accommodations are reasonable under the circumstances, the employer must allow them and cannot retaliate against the employee for needing, using, or asking for those accommodations.
Continue reading