New Jersey Lawyers Blog

Published on: October 11, 2018

Progressive Discipline: Consideration of Prior Infractions in Discipline of New Jersey Civil Service Employees

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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.

Published on: October 3, 2018

The New Jersey Supreme Court Issues Major Ruling on Civil Service Appeals

by Maurice W. McLaughlin

supreme-administrative-court-3565618_960_720-300x200 All 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.

Published on: September 17, 2018

Protecting Business Information Under the New Jersey Trade Secrets Act and With Confidentiality/Non-Disclosure Agreements

by Maurice W. McLaughlin

confidential-1726367__340-300x300 Businesses entering into negotiations with other businesses or persons often need to give the other party confidential information. For example, a business will need to give a potential buyer information regarding its revenue, expenses, customers, formulas, payroll, vendors, and pricing so that the potential buyer can formulate an offer during the due diligence period. If the deal falls through the seller will rightly want to ensure that the buyer which backed can’t use this information to compete with it or disclose it to competitors or customers.

Fortunately, New Jersey business law gives such companies two important tools to protect their information: The New Jersey Trade Secrets Act and enforceable confidentiality agreements (also known as non-disclosure agreements, or “NDA’s”).

The New Jersey Trade Secrets Act

Published on: August 21, 2018

Third Circuit Issues Major Employment Law Decision Affecting New Jersey Sexual Harassment Claims

by Maurice W. McLaughlin

yes-3029367__340-300x158 The 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.

Published on: August 17, 2018

The Extent of State University’s Immunity from Local Governance

by Pauline M.K. Young

baltimore-city-hall-1482793__340-300x205 Montclair State University has spent the last decade or so trying to obtain approval from the County of Passaic and the City of Clifton to construct a roadway which would intersect with a county road. Both the County and the City raised concerns about the proposed development and Montclair State made significant efforts in an attempt to address those concerns. In 2014, Montclair State submitted an application to Passaic County for a permit to install traffic controls at the intersection.

Montclair State did not seek permission from Clifton or Clifton’s Land Use Board based upon belief that, as a state organization, it was not subject to local regulations. Montclair State asserted this position largely based upon the 1972 New Jersey Supreme Court case of Rutgers v. Piluso.

The question in the Rutgers case was whether Rutgers University was subject to zoning ordinances of the town where it was located, Piscataway. Piscataway had an ordinance which restricted the number of matriculating students’ “family dwellings” Rutgers could have. When Rutgers sought to build more, the town denied the request, citing the ordinance. Rutgers then brought a suit seeking a determination from the court that Rutgers was not subject to local zoning ordinances because it was an instrumentality of the State of New Jersey.

Published on: July 25, 2018

New Jersey’s Sick Leave Law

by Pauline M.K. Young

love-3365338__340-300x191 On 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.

Published on: July 12, 2018

New Jersey Able Account Update

by Jennifer C. Meusel

On June 18, 2018, The New Jersey Human Services Commissioner announced a new program to help individuals with disabilities through ABLE accounts which can now be opened in New Jersey. By opening an ABLE account in New Jersey, individuals with disabilities can save tax free for certain eligible expenses (qualified disability expenses) and the funds saved in the ABLE account will not be counted as assets for Medicaid and other benefit programs. able-account-300x214

ABLE stands for “Achieving a Better Life Experience” and the Act authorizing these accounts was signed into law by President Obama in December 2014. The purpose of the law was to allow tax-free savings accounts to be set up by individuals with disabilities. Continue reading

Published on: July 11, 2018

McLaughlin & Nardi’s Employment Attorneys Successfully Appeal Psychological Disqualification of Applicant for New Jersey Correction Officer Position.

by Maurice W. McLaughlin

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).

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

Published on: June 28, 2018

Third Circuit Case Demonstrates How New Jersey’s Whistleblower Law Provides Greater Protection to Health Care Employees Than Federal Employment Law

by Maurice W. McLaughlin

workplace-615375__340-300x200 The 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.

Published on: June 24, 2018

FAQ’s on New Jersey’s Paid Sick Leave Legislation

by Maurice W. McLaughlin

men-1979261__340-300x200 New 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.