Articles Tagged with New Jersey Employment Attorneys

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Police officer discipline has significant ramifications under New Jersey employment law, whether the officer is in a civil service or non-civil service police department.  These extend beyond the ramifications of discipline for other public and private employees in New Jersey.  Thepolice-1714956__340-300x200 Appellate Division of the New Jersey Superior Court recently examined some of these ramifications in its opinion in the case of Gilbert vs. Warren County Prosecutor.

Background

Jefferey C. Gilbert was a police officer with the Mansfield Township Police Department, a non-civil service jurisdiction.  He settled department disciplinary charges arising from alleged misconduct during a DUI investigation.  Gilbert accepted a six day suspension without pay to resolve all the disciplinary action against him, with the provision that the record of the discipline would remain in his personnel file and could be used as evidence if he received future disciplinary charges for the purposes of progressive discipline.

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The Appellate Division of the Superior Court of New Jersey examined the evidence necessary for claims of retaliation, discrimination and harassment under New Jersey’s Law Against Discrimination and New Jersey’s whistleblower law, the Conscientious Employee Protection Act.  The unpublished opinion also examined what law an employee may bring suit under for whistleblower claims at the same time she is also bringing claims of discrimination and sexual harassment under New Jersey employment law.

Background

Nadine Heller is an associate professor at Middlesex County College (“MCC”).  She received tenure in that position and still holds it.  She also held the position of Chair of the Visual and Performing Media Arts Department.  As Chair she was part of the Department administration.

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The New Jersey Wage and Hour Law regulates minimum wage and overtime requirements.  It is New Jersey’s counterpart to the Federal Fair Labor Standards Act.  The Wage and Hour Law and Fair Labor Standards Act are bedrock elements of New Jersey employment law.  Under the Wage and Hour Law, New Jersey employers must pay overtime at a rate of one and half times an employee’s regular pay if she works more than forty hours a week.  However, if the employer is in imagesCAWQ89PSthe trucking industry, the employer is only legally required to pay overtime at the rate of one and half times minimum wage.  However, if the employer should have paid the higher rate but paid the lower rate, it can raise the defense that it did so in “good faith” reliance on government orders or regulations.

In the case of Branch v. Cream-O-Land Dairy, Elmer Branch filed a class action lawsuit in the New Jersey Superior Court against his employer, Cream-O-Land Dairy, on behalf of himself and similarly situated truck drivers employees, for non-payment of overtime in violation of the Wage and Hour Law.  Cream-O-Land argued that it was not required to pay the higher rate for two reasons.  First, it argued that it was a “trucking industry employer,” and that all the employees were paid at least the lower overtime rate.  Second, it argued that it met the “good faith” defense.  The trial agreed that Cream-O-Land satisfied the good faith defense and dismissed the case on that ground.  Branch appealed to the Appellate Division of the Superior Court which reversed, finding that the matters on which Cream-O-Land relied did not satisfy the statutory requirements of the Wage and Hour Law.

Cream-O-Land then appealed to the Supreme Court of New Jersey.  Because the trial judge did not address the exemption for trucking industry employers the Supreme Court, like the Appellate Division,  examined only whether Cream-O-Land satisfied the good faith defense.  It ruled that it did not.

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As we have explained here before, the New Jersey Civil Service appeal process gives civil service employees a meaningful avenue for appealing discipline imposed by their government employers.  However, a recent appellate opinion is a good reminder that this meaningful avenue for appeal is a two-way street.police-1714956__340-300x200

The New Jersey Civil Service Appeal Process

When a governmental employer wants to discipline employees with civil service protections, it must first give them a Preliminary Notice of Disciplinary Action (a “PNDA”) listing the charges and specifications against them.  Employee then have the right to elect to have a hearing, and whether they do nor not, when final discipline is imposed, the employer must then give the employee a Final Notice of Disciplinary Action (an “FNDA”).  For major discipline (a fine or suspension of more than five days, or termination), the employee has 20 days to file an appeal.

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The recent trend has been for courts to find arbitration agreements enforceable under both Federal and New Jersey employment law.  However, prior to enforcing an arbitration agreement, courts must  find that there was actually agreement.  This simple concept was emphasized again by the Appellate Division of Contract-pen-thumb-300x225-80678-300x225the Superior Court of New Jersey in the case of Christina Imperato v. Medwell, LLC.

In that case, Christina Imperato was hired by Medwell, a chiropractic office.  She had a limited education and no prior medical or office experience.  When she was hired, Dr. Ali Mazandarani sat with her and had her sign some pre-employment forms.  They were not explained; Mazandarani sat with her, handed her the forms, and pointed to where she should sign.  She was not given the opportunity to read these or take them home.  The documents included a five page agreement which required that employment disputes be resolved by arbitration rather than court.

Imperato sued Medwell in the Superior Court of New Jersey for sexual harassment in violation of New Jersey’s Law Against Discrimination.  Medwell’s attorneys filed a motion asking the court to dismiss the lawsuit and order the case to arbitration.  The trial judge allowed discovery, including depositions, on the limited question of whether Imperato signed the arbitration agreement, and if so whether she signed it voluntarily and knowingly.  The judge then held a hearing with live testimony on that single issue.

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A while ago I wrote a blog detailing the disciplinary process and appeal rights of non-civil service police officers under New Jersey employment law.  The Appellate Division of the Superior Court of New Jersey recently issued an opinion clarifying who is and isn’t a law enforcement officer entitled to these rights.police-hoboken-train-station

New Jersey Civil Service confers extensive due process rights on public employees before a government employer may impose discipline, including appeal of discipline to the New Jersey Civil Service Commission.  However, non-civil service employees, including police officers, do not have those protections, however.

Therefore, to increase the protections and legal rights for non-civil service police officers, the Legislature adopted several laws,  the first of which provides:

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The Appellate Division of the Superior Court recently issued an opinion on New Jersey employment law discussing the nature of sexual harassment and when a us-supreme-court-300x200tort claim notice must be served in the employment context.

 
The Willis Case

In this case, Willis v. Walker, Fuller and the College of New Jersey, Ratarsha Willis was employed as a senior building maintenance worker by The College of New Jersey (“TCNJ”). Willis and Walker had a consensual affair, during with Walker recorded their tryst on his cellphone in flagrante delicto.  Willis did not report to Defendant Walker, but he could assign her work.  Walker advised Willis that he showed the video with other employees, including Fuller, because she was teasing Walker that “his penis was little.”  Fuller, a supervisor, discussed the video with other TCNJ employees, but took no action to stop the conduct or report it to human resources.

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An important New Jersey employment law decision was recently issued by the Appellate Division in the case of Dibuonaventura vs. Washington Township.  Thesupreme-administrative-court-3565618_960_720-300x200 case has a long and tangled history, but this decision illustrates several important employment law rules affecting New Jersey government employees.

Background: Dibuonaventura I & II

Joseph Dibuonaventura was a police officer in Washington Township.  In 2012, he pulled over the Township’s former mayor and charged him with driving while under the influence of alcohol and refusing to take a breathalyzer test.  The former mayor disputed the charges and lodged internal affairs and criminal complaints against Officer Dibuonaventura.  Eventually the officer was indicted, and the Township suspended him pending the outcome of the criminal charges.  He was eventually found not guilty of all criminal charges by a jury.

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The Arafa Case

The New Jersey Supreme Court issued an opinion in the case of Arafa v. Health Express Corporation in a consolidated appeals about a niche question regarding the interplay of the Federal Arbitration Act (the “FAA”) and the New Jersey Arbitration Act (the “NJAA”) regarding the judge-gavel-1461998219JBc-300x200enforceability of agreements in employment contracts to arbitrate disputes under New Jersey employment law.  The consolidated cases were both brought as class actions by employees whose duties included driving to make deliveries for their employers.  In one of the appeals it was clear that the employees were making deliveries outside the state as well as in it, and were therefore engaged in interstate commerce; in the other it was not clear.  In both cases the employers argued that the cases were not covered by the FAA, which contains an exemption which provides that the FAA will not apply to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,” which the United States Supreme Court has defined to include interstate deliveries.  Because the drivers were not covered by the FAA due to the exception, the employers argued, they were covered by the NJAA, which did not contain such an exemption, and the arbitration agreements were therefore enforceable.  Thus, the employers argued, the lawsuits in Superior Court should be dismissed and the cases submitted to binding arbitration.  The trial judges in the Law Division of the Superior Court of New Jersey agreed with the employers and dismissed the suits and ordered them to arbitration.  In both cases, the employees separately appealed, and different panels of the Appellate Division of the Superior Court reached different decisions.  To resolve the split, the New Jersey Supreme Court agreed to hear the appeals.

Why does this matter?  If it seems pretty arcane, it has significant real world consequences.  First, the employees sued for unpaid overtime under the New Jersey Wage and Hour Law because New Jersey law and New Jersey courts are seen – rightly or wrongly – as more friendly to employees than federal court, which of course is why the employers didn’t want the case there.  Moreover, arbitration is seen as much more friendly to employers than employees, which is why the two sides were fighting over it.

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The Chancery Division of New Jersey’s Superior Court recently issued a public employment law decision in the case of Petrella v. The Hackensack Board of Education which is important for New Jersey teaching staff members because it examined the grounds for overturning an arbitration decision on tenure charges under the TEACHNJ Act.judge-gavel-1461998219JBc-300x200

Under New Jersey employment law, tenure confers many benefits on teaching staff members.   A teacher or other teaching staff member, such as an athletic director, who has tenure may not dismissed or have their pay reduced for any reason other than incapacity, inefficiency, conduct unbecoming, “or other just cause.”  It also gives teaching staff members appeal rights if tenure charges are filed against them, which includes binding arbitration under the TEACHNJ Act.

In the Petrella case, tenure charges were filed against a tenured athletic director for:

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