New Jersey civil service law provides significant protection for employees serving in civil service jurisdictions which other employees, even other government employees who are not in the civil service system, do not enjoy.
Layoffs. A layoff is the cessation of a permanent employee’s employment for economic reasons or efficiency, triggering the rights and procedures provided by New Jersey civil service law to those affected by layoffs. Demotions for reasons of economy, efficiency or related reasons are also treated as layoffs. Demotions in the form of reduction in hours are also layoffs. A civil service employee is entitled to all applicable civil service due process protections if her position does not meet the definition of a layoff. Layoffs cannot be used as discipline. Whether her position is abolished or not, if she is affected by a layoff the Civil Service System gives her significant protections if she is subjected to any employment action for other than economy or efficiency outside a layoff plan approved by the New Jersey Civil Service Commission.
Pre-Layoff Actions, Alternatives. An employer must try to avoid layoffs, and if that is not possible then to lessen the extent and impact by using pre-layoff actions. Before instituting layoffs, voluntary or involuntary, the employer must consult with the union for the affected employees. Examples of voluntary alternatives include leaves of absence without pay while keeping seniority; furloughs; reduction of work hours; job sharing; and providing optional temporary demotional titles.
If voluntary alternatives do not work, then the employer must use involuntary pre-layoff actions. These include temporary hiring or promotion freezes; separating employees who are not permanent; removing provisional employees and placing them back in their permanent titles; reassigning employees; and assisting employees with transfers or other employment.
Also, the employer must lessen the impact of a layoff on permanent employees as far as possible by first laying off non-permanent employees, and then permanent employees in reverse order of seniority, in positions being vacated, reclassified or abolished.
Seniority for Determination of Layoff Rights, Order of Layoffs. Layoff rights are determined by seniority. Permanent employees are laid off in reverse order of seniority. The New Jersey Civil Service Commission determines seniority rights based on the scheduled effective date of the layoff. Disabled veterans have priority over veterans, and veterans have priority over non-veterans.
Suspensions, some leaves of absence without pay, and any period an employee is laid off are deducted from seniority. However, many leaves, both paid and unpaid are included when calculating seniority
Employees who are serving in working test periods begin to accrue seniority upon regular appointment. Permanent employees who are serving in a provisional, temporary or interim appointment continue to accrue seniority in their permanent titles.
Preferred Status. Employees may have “preferred status” which entitles them to “bumping rights.” An employee receives “preferred status” when she is ranked higher for purposes of layoff rights over others then serving in a demotional title. Preferred status can be obtained in several ways. The first includes employees who have permanent status and exercise demotional rights to a title not previously held. The second includes employees reappointed from a special reemployment list to a lower title than the one from which they were laid off or demoted from in a layoff. The third is where more than one employee has preferred status; in this case, priority will be based on the State service class code or the local service class level of the permanent title from which the employees were laid off or demoted and their seniority in their prior higher title.
Notice of Layoff Action. Written notice must be served by the employer on affected employees 45 days prior to separation or demotion. It must include the reasons for the layoff. The notice expires 120 days. If the notice expires, new notices must be served.
Limits on Reassignments After Notice. Some types of involuntary reassignments of both permanent and probationary employees in an affected title are prohibited for twelve months after the layoff notice, except as permitted by the New Jersey Civil Service Commission for good cause. These include shift reassignments on any basis other than seniority.
Determination of Layoff Rights, Final Notice of Individual Status. Once notified of the layoff, the New Jersey Civil Service Commission determines seniority rights. Affected employees must then be served with a final written notice of their status, including appeal rights.
Lateral Rights. Permanent New Jersey civil service employees hold certain “bumping rights” over other employees, based permanent status and subject to seniority, which other employees do not enjoy. A “lateral right” or “lateral title right” is the right of a permanent employee to displace (or “bump”) another employee, permanent or provisional, in the layoff unit holding comparable title. A “lateral right” or “lateral title right” for a probationary employee means the right to fill a vacant position or to displace a provisional or probationary employee in the same title. Employees are ranked for purposes of lateral title rights in order of seniority.
Demotional Rights. Another “bumping right” protection for employees in a layoff are demotional rights. A “demotional right” or “demotional title right” is the right of a permanent employee to displace or bump an employee in a lower title in the same layoff unit. In other words, rights to positions at a lower level. This is mandatory: An employee shall be demoted instead of being laid off whenever possible.
A local government employer can adopt an ordinance or resolution allowing police officers and firefighters to exercise previously held demotional rights against employees in any layoff unit in the jurisdiction.
Reemployment Rights After Layoff. Laid off permanent employees have a “special reemployment” right. This means they have the right to placed on a special reemployment list for the same title, or lateral and lower related titles based on the permanent title they held when laid off. Special reemployment rights are determined by the New Jersey Civil Service Commission by the same method and criteria as lateral and demotional rights.
Employees entitled to special reemployment rights are placed on a special reemployment eligible list. The list includes current and former permanent employees who were laid off, demoted laterally or otherwise displaced in lieu of layoff. Employers must hire or promote from a special reemployment list certified by the New Jersey Civil Service Commission, if one exists.
Special reemployment lists have priority over the following:
- All other reemployment lists, open competitive lists and lateral title changes pending examination, except those which resulted from position reclassifications, for the entire jurisdiction;
- Promotional lists for the State departments, autonomous agencies or local jurisdictions where the layoff occurred;
- Noncompetitive appointments and transfers, except appointments in lieu of layoffs; and
- Lateral title changes except those resulting from position reclassification within a layoff unit.
Special reemployment lists have unlimited duration.
Appeals to New Jersey Civil Service Commission. Permanent employees and employees in working test periods may appeal a layoff or demotion based on lack of good faith to the New Jersey Civil Service Commission within 20 days of final notice. The employee must demonstrate that the employer laid off or demoted her in lieu of layoff for reasons other than economy, efficiency or related reasons.
Employees may also file determination of rights appeals with the New Jersey Civil Service Commission on the grounds that their layoff rights or seniority were incorrectly determined and/or applied. These appeals must also be filed within 20 days.
The burden of proof is on the employee.
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