Government employees receive significant due process rights to challenge employer discipline which private sector employees and employees in non-civil service jurisdictions do not enjoy. However, because New Jersey employment law recognizes the great responsibility placed on law enforcement officers, the Legislature has enacted robust procedures for police officers not covered by civil service to appeal discipline to the Superior Court. Nonetheless, in the case of Miller vs. Borough of Berlin Police, the Appellate Division reminds us that the burden of proof remains on the officer and evidence is king.
Jason Miller was a police officer with the Borough of Berlin Police Department, a non-civil service jurisdiction. He was dispatched to a banquet hall because of a report of the theft of a purse. Surveillance video showed an employee taking the purse, the manager gave Officer Miller the employee’s name and address, and Miller took a victim statement. Miller told the victim that the employee was clearly identifiable and would be charged with a crime (as the victim told him she wished), and that the case was a “slam dunk.” However, Miller did not follow up or press charges, and stated in the incident report that the victim did not wish to pursue criminal charges. Several days later the victim called the Department to follow up. Another officer took the call, and eventually other officers arrested the employee, who confessed.
A recent New Jersey employment law decision in the case of In the Matter of Wilfred Guzman, Rockaway Township Police Department, examined what penalties are available against a New Jersey civil service law enforcement officer.
Wilfredo Guzman was a police officer with the Rockaway Township Police Department, a civil service jurisdiction. Guzman was suspended without pay from April 24, 2017, when he was indicted, until June 19, 2019, when he was served with a Final Notice of Disciplinary Action which terminated him. The termination was triggered by Officer Guzman’s guilty pleas to two counts of second degree official misconduct. The Township also fined Officer Guzman the equivalent of 1040 hours worth of pay. Guzman appealed the fine to the New Jersey Office of Administrative Law (“NJOAL”) – New Jersey employment law allows civil service law enforcement officers to skip appeals to the New Jersey Civil Service Commission requesting that the appeal be considered a contested case, and instead file instead directly with the NJOAL.
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 the 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.
In the wake of the death of George Floyd, New Jersey Attorney General Gurbir S. Grewal issued two directives amending New Jersey’s Internal Affairs Policy and Procedures (commonly referred to as the “Attorney General Guidelines” or the “IAPP”). The thrust of these directives is to allow for the disclosure of New Jersey law enforcement officer disciplinary records to promote transparency and confidence in police departments and internal affairs disciplinary procedures, as well as to broaden the discovery available to criminal defendants. Those issues are worthy of a dissertation in themselves, but here I want to focus briefly on their effect in New Jersey employment litigation.
Problems Shielding Records in Employment Law Cases
Federal versus State Courts for New Jersey Employment Law
Employees who sue their employers for violating New Jersey employment law most often choose to litigate in state court because New Jersey employment law and courts are viewed as more favorable to employees, while employers seek to litigate in Federal court, because federal courts and employment law are seen as more friendly to employers. However, there are exceptions. For instance, public employees sometimes have additional remedies under federal employment law, and employees can litigate their state and federal law claims together in federal court. A good example of this can be seen in a decision in Chesler vs. City of Jersey City by Judge Susan D. Wigenton of the United States District (New Jersey’s federal trial court).
The Chesler Case
The New Jersey Supreme Court once again expanded the enforceability of arbitration agreements under New Jersey employment law. In its opinion in Skuse vs. Pfizer, Inc., the Court left in place the requirements necessary for agreements to arbitrate employee/employer disputes under New Jersey employment law, but in its application let the exceptions swallow the rule.
Pfizer’s Arbitration Agreement
Pfizer adopted an arbitration “agreement” – actually, more of a policy. It was not a contract signed by an employee and Pfizer. Rather, the employee was deemed to have agreed to arbitrate employment disputes if she continued working for Pfizer for sixty days after the policy’s effective date. Employees were notified by email (to over 28,000 employees) about the policy and given a deadline to “acknowledge” having received it. Whether the employees did or did not acknowledge receipt, they would be deemed to have “agreed” to the policy by their continued employment. There was a training module with four slides which purported to explain the policy; one of the slides gave the employees the option to print a copy, but they were not given a copy by Pfizer; another thanked the employee for taking the training. In the FAQ section of the training module employees were told that if they did not agree they would be fired.
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 enforceability 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.
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.
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:
New Jersey employment law provides that government employees may be fired for conviction of a crime, and for many crimes they must be fired. However, if they are exonerated they may be reinstated to their position. They may be subject to further discipline, but if they are not they may also receive back pay, seniority and benefits for the period of their suspension.
Suspension During Criminal Charges
New Jersey Civil Service Commission regulations provide that an employee’s conviction of a crime is grounds for discipline. An employee suspended while a criminal complaint or indictment is pending must be served with a Preliminary Notice of Disciplinary Action (known as a “PNDA”). The PNDA should include a statement that forfeiture of the employee’s position may result, and that the employee may choose to consult with an attorney. In this case representation by an attorney is always advisable. Within five days of receipt of the PNDA, the employee may request a departmental hearing. If no request is made (within five days or an agreed upon extension) the employer may issue a Final Notice of Disciplinary Action (an “FNDA”).