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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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The Federal Fair Labor Standards Act, like New Jersey’s Wage and Hour Law, requires that employees as a general rule must be paid a specified minimum wage, and overtime when they work more than 40 hours per week.  However, certain classes of employees are exempt from these requirements.  Thus, nonexempt employees need to be paid minimum wage and overtime, while exempt employees do not.  Inus-supreme-court-300x200 order to be considered an exempt employee under the exemption for “professional” employees, an employee must be paid on a “salary basis,” make at least $684 per week, and her work must require advanced knowledge in a field which is normally acquired “by a prolonged course of specialized intellectual instruction; or… requires invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.”

The United States Court of Appeals for the Third Circuit, which hears appeals from the Federal trial courts in New Jersey, Pennsylvania, Delaware, and the United States Virgin Islands, recently examined the professional employee exemption in the case of Stephanie Higgins v. Bayada Home Health Care Inc.

Background

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New Jersey Business Law and Liquidated Damages

Business parties draft contracts to give them a measure of certainty in their future relationship.  However, it is not a secret that contracts are frequently breached, so parties often want a degree of certainty about what able-account-300x214will happen in the event of a future breach.  This gives rise to greater likelihood that the contract will be performed, and hopefully limits litigation costs if there is a breach.  However, New Jersey business law, and indeed contract law generally, prohibits penalties in contracts.  Thus, damages for breach of contract must reflect actual damages to put the innocent party in as good a place as it would have been had the breach not happened, rather than a greater amount to penalize a breaching party.

But when drafting a contract for a business relationship which will be performed in the future, it is often impossible to know what the amount of damages will be.  Too many things are unknown, such as whether the relationship will be profitable and if so how profitable; and how much time will remain on the contract when a breach occurred, and thus how long the damages will accrue.   For this reason New Jersey contract law allows for liquidated damages.  Liquidated damages are an estimate of actual damages included in a contract to give more certainty about what will happen in the event of a breach.  But liquidated damages must be a good faith estimate of actual damages in order to be valid and enforced.

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In my last post I wrote about the Appellate Division case of In the Matter of Ambroise, which demonstrated that employees will get a fair hearing before the New Jersey Civil Service Commission and in appeals to state appellate Courts.  Another recent Appellate Division opinion columns-round-300x201in the case of In the Matter of Christopher Dunlap, Fire Fighter (M1838W), Township of Hillside shows that the Civil Service Commission and Appellate Division are not afraid to call B.S. on employers when the situation warrants.

Background

Christopher Dunlap passed the civil service examination for firefighter, and his name was placed on the eligible list.  His name was certified for employment with Hillside Township.  He completed the application process, but was rejected by the Township for allegedly making a “material misrepresentation” on his application.  Making any “material misrepresentation” in the hiring process will cause an applicant to be removed from the eligible list.  The Township said that he failed to disclose juvenile charges against him.  Facts are everything, so I will quote at length from the Appellate Division’s decision.

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A recent appellate opinion in the case of In the Matter of Ambroise demonstrates that New Jersey civil service employees will receive a fair hearing in appeals with the New Jersey’s Civil Service Commission and appeals courts.us-supreme-court-300x200

Background

Ambroise was terminated as a senior correctional police officer (SCPO) by the New Jersey Department of Corrections (DOC).  The DOC alleged that Ambroise engaged in oral sex with an inmate at the Edna Mahan Correctional Facility for Women.

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The New Jersey Wage and Hour Law and Wage Payment Law

Like the Federal Fair Labor Standards Act, New Jersey’s Wage and Hour Law requires that employers pay non-exempt employees minimum wage for all hours that they work, and overtime (time and a half) when employees work more than forty hours per week.  New Jersey’s Wage Payment Law requires that employers pay employees pay allemployment_law_damages wages that they are due, and sets forth the timing and procedures for payments and permitted deductions.  This is a much-litigated area of New Jersey employment law.

Suits under the New Jersey Wage and Hour Law and Wage Payment Law have long been required to be brought within two years of the violations or they would be time barred.  However, in 2019 the New Jersey Legislature amended both laws to extend the time for filing a civil lawsuit for violation of the laws from two to six years.  The amendments were silent about whether they would apply retroactively or only going forward.  Generally, unless the Legislature provides for retroactive application of new statutes of limitations they apply only prospectively – in other words they normally apply only going forward to acts which occurred after the amendment, not looking backward to what happened before.  These amendments were to take effect immediately upon enactment, which occurred on August 6, 2019.

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New Jersey employment law in the public sector contains few more contentious areas than the confidentiality of the disciplinary and personnel records of law enforcement officers.  A trio of published New Jersey State and Federal court opinions have shed light on this contentious and evolving area of the law.police-1714956__340-300x200

In re Attorney General Law Enforcement Directives: Disciplinary Records

The Legislature has tasked the New Jersey Attorney General with supervising law enforcement throughout the state.  In 2020, in the midst of the George Floyd protests, the New Jersey Attorney General used that authority to issue two directives which would release the names of law enforcement officers who have committed violations resulting in “major discipline,” and to issue summaries of the underlying complaints and discipline imposed. Although the directives apply to all State and local jurisdictions, they define “major discipline” similarly to New Jersey civil service law: suspension of greater than five days, demotion, or termination.  The Attorney General’s given reasons for the directives were to “promote trust, transparency and accountability.”

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