In the tough economic times brought on by COVID-19, many governors and mayors, including New Jersey’s Governor Murphy, have said that widespread layoffs may be necessary if federal assistance is not forthcoming. Our attorneys represent New Jersey Civil Service employees, and we see the struggles they are facing. Given this, we thought the time was right to review the layoff rights available under New Jersey Civil Service law.
A layoff is the termination of a permanent employee’s employment because of economic reasons. Demotions or reduction of hours for economic reasons are also treated as layoffs, triggering the rights and procedures applicable to layoffs.
Layoffs cannot be used for discipline. In New Jersey Civil Service, layoffs and discipline have different rules, and affected employees have different rights.
Employers Required to Explore Pre-Layoff Alternatives
An employer (called an “appointing authority” in Civil Service terms) has an obligation to avoid layoffs, and if that is not possible then to lessen the extent and impact by implementing pre-layoff actions. Prior to instituting layoffs, voluntary or involuntary, the appointing authority is required to consult with the union representative which represents the affected employees
State employers must, and local employers should, try to reduce the possibility of layoffs by offering, as appropriate, voluntary alternatives. Voluntary alternatives to layoffs include leaves of absence without pay; voluntary furloughs; voluntary reduction of work hours or job sharing; providing optional temporary demotional titles; and any other appropriate actions the employer can take to avoid layoffs. Participation in voluntary alternatives to layoffs does not diminish employees’ layoff rights, and the employees will continue to earn seniority in their original title
If voluntary alternatives do not work, New Jersey Civil Service Law requires employers to initiate involuntary pre-layoff actions. These include temporary hiring or promotion freezes; separating employees who do not have permanent status; removing provisional employees to their permanent titles; reassigning employees; and assisting employees with transfers or other employment. Non-permanent employees are laid off first, and then permanent employees in reverse order of seniority.
New Jersey Civil Service Commission Review
The layoff must be approved by the New Jersey Civil Service Commission. The employer must submit the proposed layoff plan with required information at least 30 days before issuance of layoff notices.
Seniority for Determination of Layoff Rights
Permanent employees are laid off in inverse order of seniority. Once notified of the layoff, the New Jersey Civil Service Commission will determine seniority rights. Layoff rights and related seniority determinations are based on the scheduled effective date of the layoff action. Determination must be made promptly. Layoff rights may have a severe impact on other employees, and thus must be exercised only within statutorily defined limits.
The New Jersey Civil Service Regulations in the New Jersey Administrative Code defines “seniority” for layoff purposes, generally, except for police and fire titles, as:
[T]he amount of continuous permanent service in the jurisdiction, regardless of title. An employee’s continuous permanent service accumulated prior to an intergovernmental transfer… shall be considered as continuous permanent service in the jurisdiction. Seniority shall be based on total calendar years, months, and days in continuous permanent service regardless of work week, work year, or part-time status.
1. A resignation/new appointment … shall not be considered a break in continuous service.
Deductions From Seniority
Suspensions, other 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 used when calculating seniority, including: Voluntary furloughs; leaves with pay including sick leave injury (SLI); military leave; educational leave; unpaid leave for gubernatorial appointment; unpaid leave for unclassified appointment; paid or unpaid personal sick time; paid or unpaid disability, family; furlough extension and voluntary alternative to layoffs, and leaves in local service, leave to fill elective public office. While the time when an employee is laid off will be deducted from seniority, if the employee is reappointed from a special reemployment list, she will be considered as having continuous service for calculating seniority.
The general rule is that Civil Service “Employees serving in their working test period shall be granted seniority based on the length of service following regular appointment.” Permanent employees who are serving in a provisional, temporary or interim appointment continue to accrue seniority in their permanent titles.
Seniority, Police and Fire Titles
For police and fire positions (referred to as “titles” in the Civil Service regulations) in both State and local service, “seniority” for layoff purposes is defined as:
the amount of continuous permanent service in an employee’s current permanent title and other titles that have (or would have had) lateral or demotional rights to the current permanent title. A police officer’s continuous permanent service accumulated prior to an intergovernmental transfer… shall be considered as continuous permanent service in the jurisdiction unless the police officer waives all accumulated sick leave and seniority rights in effecting the transfer. Seniority shall be based on total calendar years, months, and days in title regardless of work week, work year, or part-time status.
“Police titles” are just to those with the title “police officer,” but any law enforcement title for which entry level employees are required to complete a police training course.
When two or more employees have equal seniority, ie., when they are “tied,” the Code sets out priority ties.
“Preferred status” is conferred when an employee receives a higher ranking for purposes of layoff rights over others then serving in a demotional title. Preferred status can be obtained by permanent employees exercising demotional rights and employees reappointed from a special reemployment list to a lower title.
Notice of Layoff Action
Written notice must be served by the appointing authority on employees 45 days prior to separation or demotion because of a layoff action, unless the Commission orders a greater time period. The notice expires 120 days after service unless extended by the New Jersey Civil Service Commission. If the notice expires, new notices must be served. Copies of the notice must be given to the Commission and the union.
Limits on Reassignments After Notice
Involuntary reassignments of both permanent or probationary employees in an affected title are generally prohibited for twelve months after the layoff notice, except as permitted by the Commission for good cause, upon specific justification shown by the employer.
Determination of Layoff Rights, Final Notice of Individual Status
Once notified of the layoff, the New Jersey Civil Service Commission determines seniority rights based on the scheduled effective date of the layoff action, which determines the employee’s layoff rights. However, if an employee accepts appointment in lieu of layoff, she forfeits any special reemployment rights she might have had.
Permanent employees hold certain rights over other employees, based permanent status and subject to seniority, which other employees do not enjoy. A “lateral right” or “lateral title right” means 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.
Another protection for New Jersey Civil Service employees in a layoff action 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. Employees are ranked for purposes of demotional title rights in order of seniority. However, employees may only displace another employee in that position if they have greater permanent continuous service, unless a provisional or probationary employee is then in that title, in which case the provisional or probationary employee will be displaced. However, the employee cannot exercise these rights if she can exercise lateral or demotional rights to a higher title than the previously held title in the selected job location.
Exercise, Order in Filling Title on Lateral or Demotional Transfer in Layoff
Permanent employees are ranked for purposes of lateral and demotional title rights in order of seniority.
Special Reemployment Rights on Layoff
Laid off permanent Civil Service employees have a “special reemployment” right. This means they have the right to be certified for reappointment the same title, or lateral and lower related titles based on the permanent title they held when laid off. These employees are placed on a special reemployment eligible list. The list includes current and former permanent employees who were laid off, demoted laterally displaced in lieu of layoff Appointing authorities must hire or promote from a special reemployment list certified by the Commission, if one exists. A special reemployment eligible list takes priority over other eligible lists. Special reemployment lists have unlimited duration. A special reemployment list from one governmental jurisdiction will not be certified to another jurisdiction.
Eligibles are ranked within class code or class level by permanent title and seniority. Appointments from special reemployment lists must be made in the order certified. An employee who accepts appointment to a vacancy in lieu of separation forfeit any the right to be placed on a special reemployment list.
Limited Applicability of Veterans Preference To Layoffs
The veterans preference applies in layoffs, but only where seniority is equal. Thus, in the event of a layoff, and assuming equal seniority, disabled veterans will be laid off last, and veterans only before disabled veterans and after all others.
Appeals to Commission
Permanent employees and employees in their working test periods may appeal a layoff or demotion based on lack of good faith to the Commission within 20 days of final notice of the layoff or demotion. The employee must demonstrate that the employer laid off or demoted an employee in lieu of layoff for reasons other than economy, efficiency or related reasons. The burden of proof is on the employee.
Employees may also file determination of rights appeals with the Commission on the grounds that their layoff rights or seniority were incorrectly determined and/or applied. Determination of rights appeals must be filed within 20 days of receipt of the final notice of status. The burden of proof is on the employee.
Our New Jersey Civil Service attorneys represent government employees in department or employer level appeals, hearings and trials in Civil Service appeals before administrative law judges in the New Jersey Office of Administrative Law, and in appeals to the Appellate Division of the Superior Court of New Jersey and the Supreme Court of New Jersey. Contact us to set up a consultation with one of our employment attorneys at (973) 890-0004 or fill out the contact form on this page. We can help.