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Independent Contractors versus Employees Under New Jersey Employment Law

Under New Jersey employment law, the classification of a worker as an employee or independent contractor has significant ramifications for both the employer and employee, including the ability of the employer to shift the cost of insurance, payroll taxes and benefits to the employee, and relieving it from having to pay time and a half for overtime.  The New Jersey Supreme Court explained in the seminal case ofbuilding-home-construction-contractor-blueprint-architecture-300x200 Hargrove vs. Speepy’s LLC, that there are different, fact sensitive tests for this determination depending on the context, such as for wage issues, workers compensation and unemployment.  More recently, the Supreme Court addressed this issue in the context of whether an employer must make contributions for disability and unemployment in the case of East Bay Drywall, LLC vs. New Jersey Department of Labor and Workforce Development.

Background: East Bay’s Business Model

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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 inus-supreme-court-300x200 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.

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New Jersey business law presents no thornier area than business divorces – when a venture goes south and the owners – the partners, corporate shareholders or limited liability members – acrimoniously split up.  The Appellate Division of the Superior Court of New Jersey recently addressed such a painful business divorce in the case of Seguracolumns-round-300x201 v. Shah.

Background: Christina Segura vs. Imran F. Shah

Christina Segura dated Imran Shah.  After about six months they decided it would be a good idea to go into business together, so they formed a partnership.  The partnership agreement allowed them to engage in virtually any profit-making business.

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New Jersey real estate law is enormously important – the purchase and sale of a home are often the largest transactions in many people’s lives.  It is fraught with risks for both buyers and sellers.

For example, let’s say you’re buying a house and you receive a disclosure form from the sellers saying that there are no problems with thetax-appeal-thumb-170x127-38564 house, so you buy it and, lo and behold, there are significant issues.  Do you have any recourse?  The Appellate Division addressed that question in the recent case of Rogers vs. Conti.

Background: The Rogers vs. Conti Case

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How a New Jersey Civil Service employee’s separation from service is characterized, either “in good standing” or “not in good standing,” has significant consequences, particularly on the employee’s ability to obtain future government employment, and may even effect her employment in the private sector.  Moreover, if the employee iscouncil-of-state-535721__340-300x103 found to have abandoned her position she may be involuntarily terminated.  Thus, the right to appeal these characterizations is important.

When a Resignation is Considered to be in Good Standing

Obviously, civil service employees want their separations to be considered in good standing, which will allow them to be reemployed.  This will also allow them to answer that they resigned in good standing when asked at job interviews even for private sector jobs.  For a resignation to be considered “in good standing” the requirements under New Jersey civil service law are that the employee actually was in good standing when she resigned and that she gave her employer at least 14 days notice, either verbally or in writing (the employer may consent to shorter notice which would allow the resignation to be in good standing despite a shorter notice period).  The resignation is considered accepted when the notice is received by the employer. The employer may allow an employee to rescind her resignation prior to the employee’s last day.

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New Jersey disability laws apply to civil service employment decisions such as hiring and promotion.  However, applicants with physical or psychological conditions must still be able to perform the essential functions of their prospective jobs with reasonable accommodation.  Fortunately, New Jersey civil service law provides a process tocomputer-300x200 protect the rights of applicants while ensuring that they are able to provide the vital public services of their prospective positions.

The Hiring and Promotion Process

The Civil Service Commission’s Regulations provide for disqualification from employment if an applicant:

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New Jersey Civil Service law gives significant protections to government employees in jurisdictions which have adopted civil service. It provides an appeals process that private sector employees and government employees inimagesCAWQ89PS jurisdictions which have not adopted civil service do not enjoy.  Most government employment decisions which do not involve minor discipline can be appealed to the New Jersey Civil Service Commission.  Beyond that, decisions of the Civil Service Commission may be appealed to New Jersey’s appellate courts.

The Appeal Process

New Jersey Civil Service Commission decisions are considered “final agency actions”  which may be appealed directly to the Appellate Division of the Superior Court of New Jersey “as of right.” This means that the Appellate Division has no discretion in whether to hear the case or not – it must hear the appeal.  Appeals to the Appellate Division from final decisions of the Civil Service Commission must be filed in writing within 45 days after the decision.

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New Jersey Civil Service Law provides an effective appeals process for employees to use when challenging discipline imposed by their employers.  This was recently illustrated in the case of In the Matter of Sherman Abrams, Northern State Prison, Department of Corrections.us-1978465__340-300x200

 

Background: The Abrams Case

Sherman Abrams was, and apparently still is, an operating engineer working for the New Jersey Department of Corrections (DOC) at Northern State Prison.  He did not report to work on October 31, November 1, and November 2, 2017.  He received a Preliminary Notice of Disciplinary Action (a “PNDA,” a Civil Service Commission Form 31-A) for excessive absenteeism and unauthorized absences.  The DOC thereafter issued a Final Notice of Disciplinary Action (a “FNDA,” a Civil Service Commission Form 31-B) terminating his employment.

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There are many differences between New Jersey employment law which applies to all employees in both the public and private sectors, and New Jersey civil service law which applies to permanent, career service government employees in civil service jurisdictions.  Generally, New Jersey civil service law provides more protections to public employees in civil service jurisdictions than private sectors employees receive.  But before New Jersey civil serviceNJ_State_House-300x200 employees can become permanent and receive all the protections of the Civil Service System, they must successfully complete a working test period.

 

Working Test Periods

Under New Jersey civil service law, a “working test period” (formerly called probation) is part of the civil service examination process which allows an employer to evaluate a new hired or newly promoted employee to determine whether she can satisfactorily perform her new duties.  During the working test period, newly hired or promoted civil service employees perform the regular duties of a permanent employee, but cannot take a promotional test from that title.  The working test period is not training.  Employees must already have the qualifications for the title prior to appointment. Employees must demonstrate competence in the position.

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Contract drafting and negotiation is one of the most important aspects of New Jersey business law.  Contracts govern the relationship between business parties.  Therefore, it is vital to ensure that a contract embodies the terms which the parties bargained for, and protects their interests.  And it must meet all the legal requirements for contracts to be enforceable.signature-3113182__340-300x200

The Appellate Division recently explored those requirements, and the consequences which follow when they are not met, in the case of Tyler at First Street, LLC vs. Yengo.

Background

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