What is a Preliminary Notice of Disciplinary Action?
A Preliminary Notice of Disciplinary Action, also known as a PNDA or a Form 31-A, is a New Jersey Civil Service form which notifies an employee that her employer seeks to impose discipline, including an immediate suspension in some cases.
What should I do if I receive a Preliminary Notice of Disciplinary Action?
Progressive discipline is a concept used in New Jersey civil service discipline law and teacher tenure charges. It can serve to increase or decrease the severity of a penalty based on the employee’s prior disciplinary record. Recently, an appellate opinion examined the concept of progressive discipline in the context of a civil service discipline appeal in the case of Matter of Stuiso, Bergen County Department of Public Works.
Ronald Stuiso was a maintenance worker for Bergen County. He filled out two repair forms reporting unsafe conditions. He directed another employee, Francesco Azzollinni, to submit the forms. Azzollinni met with Vincent Rothenburger, a department supervisor. Rothenburger raised his voice at Azzollinni, leading Stuiso to intervene and raise his voice at Rothenburger while getting in his face. The two continued yelling until separated by co-workers.
New Jersey employment law affords civil service employees with many due process protections when their employer seeks to impose discipline. The Appellate Division’s recent decision in a civil service discipline appeal in the case of In the Matter of Figueroa, Camden County, Department of Parks examines one of the fundamental principles of these protections – the notice required to be received by the employee before discipline may be imposed.
Adrian Figueroa, Jr., was a laborer for Camden County, a civil service jurisdiction, for 5 years. He was charged with second-degree sexual assault and spent several days in jail after his arrest. While he was in jail someone, it is unclear who, called and said he was out sick. Eventually the County learned of the charges and served him with preliminary and then final notice of disciplinary action (a “PNDA” and “FNDA,” Forms 31-A and 31-B) suspending him pending the resolution of the charges. They were eventually downgraded and Figueroa pled guilty to harassment, a petty disorderly office.
The New Jersey Law Against Discrimination
New Jersey employment law has long been at the forefront of prohibiting discrimination. Indeed, the Legislature adopted New Jersey’s Law Against Discrimination in 1945, long before the Federal Civil Rights Act of 1964 first banned employment discrimination on the basis of race, and even before the President Harry Truman’s Executive Order desegregating the Armed Forces in 1948. The Law Against Discrimination has been amended many times since then to expand the protections against discrimination in employment, and decisions by New Jersey courts have interpreted the Law to provide much broader protections than those provided by similar Federal statutes such as the Federal Age Discrimination in Employment Act (known as the “ADEA”). However, the Law Against Discrimination is not without its flaws. The New Jersey Legislature acted in 2021 to fix one of these flaws by strengthening the protections against age discrimination.
Prior Loopholes in Age Discrimination Protections
In many areas of New Jersey employment law, the scope of an arbitrator’s powers is a significant question. This is particularly true in the adjudication of tenure charges against New Jersey teachers and principals. The Appellate Division of New Jersey’s Superior Court squarely addressed this issue in the recently published decision in the case of Sanjuan v. School District of West New York.
The Sanjuan Case: Background
The Court explained that Amada Sanjuan was an assistant principal with the West New York Board of Education, after having been hired as a teacher in 1997. On February 12, 2020, she fell down a flight of stairs. Video of the scene showed that after she fell, she removed a piece of paper from her purse and placed it at the top of the stairs. She pointed out the paper to a custodian and teacher who came to help her and explained that the paper caused her fall. Sanjuan was out of work thereafter, but confirmed this version in a signed injury report.
The New Jersey Law Against Discrimination is one of the main employee protections under New Jersey employment law. The Appellate Division of the Superior Court of New Jersey recently examined the anti-retaliation provisions of the Law Against Discrimination.
The New Jersey Law Against Discrimination
The Law Against Discrimination prohibits employers from taking adverse action against an employee or harassing them
This past Spring, SWANA’s (Solid Waste Association of North America) New Jersey Chapter returned to their live Annual Conference following a two-year hiatus resulting from the Covid-19 pandemic.
The conference covered a wide range of topics related to the solid waste industry and New Jersey solid waste law, including safety in waste transportation, to the recent implementation of the plastic bag ban across the State, to fleet innovation and modernization. SWANA NJ panelists in fact noted that solid waste transporters are 10 times more likely to have fatalities than workers in other industries and that waste haulers have the 6th most dangerous job in the United States (more dangerous than firefighters). Interestingly, statistics show that most accidents occur in March and June which – it is speculated – may be the result of an influx of pedestrians during these months. It is therefore recommended that waste transporters increase their safety meetings, briefings, and/or reminders to drivers and workers around these time periods.
SWANA’s national organization emphasizes their 5 tips for safe work practices. First, always wear Personal Protective Equipment. This is not limited to Covid masks. PPE for waste haulers may include high visibility vests and/or outerwear. Second, never use your cell phone while driving or working. Besides being illegal, distraction from cell phone use is a huge factor in accidents. Third (and mostly for municipal waste transporters) don’t ride on the step if the truck is backing up or traveling at more than 10 mph or for more than 1/5th mile at a time. Fourth, always comply with safety belt rules. Fifth, never speed and never rush.
New Jersey law imposes certain requirements on the behavior of employees, whether through the common law or contract. New Jersey employment law and business law will enforce restrictive covenants, including non-compete agreements, if they meet certain requirements. However, the tests for enforceability are different for restrictive covenants contained in employment agreements and those which are part of the sale of a business. Likewise, whether or not there are restrictive covenants, New Jersey employment law imposes on employees a duty of loyalty to their employers. The Appellate Division recently examined these requirements.
Robert Ryerson was a registered investment advisor (RIA), providing financial planning and investment services until the National Association of Securities Dealers (NASD) found him guilty of misconduct in 2006 by sharing commissions with non-NASD members and intentionally misleading his employer. Ryerson owned and operated NCP, a small financial advisory firm. However, the NASD’s revocation of his license meant he could no longer operate NCP.
New Jersey employment law provides many protections to employees. One of the strongest of these is the tenure rights afforded to public school teachers. Even with such strong protections, for many reasons employees sometimes decide to forgo these rights. The Appellate Division of the Superior Court of New Jersey recently addressed a question about what notice is required when a full-time teacher voluntarily moves to a part-time position before she will be deemed to have waived her tenure rights to a full-time position in the case of Parsells v. Board of Education of the Borough of Somerville.
Catherine Parsells was a tenured teacher with the Somerville, New Jersey, Board of Education. She began working there in 2010. In May 2016, a part-time teaching position with benefits became available. She applied so that she could spend more time with her young son, and her application was approved. Thereafter, Parsells went out on maternity leave on February 2, 2017. She advised the superintendent that she intended to return to the part-time job the following year; he advised that she could, but the job would no longer have benefits, and that if she wanted befits she would have to work in a full-time position. She continued part-time and later declined a new full-time position for family reasons. She extended her maternity leave to include the entire 2017-2018 school year.