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Articles Tagged with “New Jersey employment law.”

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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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Background

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 police-1714956__340-300x200law 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

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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 courthouse-1223280__340-300x200more 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

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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 columns-round-300x201under 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.

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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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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, police-hoboken-train-stationseniority 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”).

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The New Jersey Supreme Court recently issued an important employment law decision in the case of  Barila v. Board of Education of Cliffside Park regarding the ability of unions to bargain away employee benefits enjoyed under prior contracts.teacher-300x224

Benefits, such as time off, are terms and conditions of employment which may be bargained for in collective negotiations.  (The term “collective negotiations” is used in the public sector instead of “collective bargaining” because, unlike in the private sector, government employees do not have the right to strike under New Jersey employment law.)  The resulting contract (or “collective negotiation agreement”) sets the terms and conditions of employment, provided the parties have bargained in good faith and the employees receive the minimum levels required by statute.

In this case, under prior contracts between the Cliffside Park Board of Education and the teachers union, including the most recent one in effect from 2012 through 2015, longer term employees could carry over and be paid for their unused sick days up to $25,000.  Not all employees could do so, however, because the New Jersey Legislature had passed a law limiting payment for unused sick time to $15,000 for employees who commenced work on May 21, 2010 or thereafter.  The statutory limit did not apply to employees who started work before May 21, 2010.

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Collectively, New Jersey state and local governments are the largest employer in the State.  Most of these jurisdictions are governed by the New Jersey Civil Service Act.  In New Jersey Civil Service jurisdictions, hiring, firing, promotion and discipline is governed by the Civil Service Act and Regulations.  This makes the Civil Service System one of the most important elements in New Jersey employment law.

The Use of Eligible Lists in Hiring and Promotion

Candidates for initial hiring and promotion in the permanent, career, unclassified civil service are selected and appointed based on their civil-service-jobs-300x200placement on eligible lists (also referred to as “certifications”).  There are five types of eligible lists: Open competitive lists, promotional lists, regular reemployment lists, police and fire reemployment lists, and special reemployment lists.

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The key to New Jersey Civil Service hiring and promotion is the examination.  The State Constitution and New Jersey Civil Service Act require merit-based appointments based, whenever possible, on examinations.

Announcements.  The New Jersey Civil Service Commission is responsible for administrating examinations which fairly test applicants’ mulitple-choice-exam-300x200knowledge, skills and abilities for the job.  Announcements are posted on the Commission’s website, and provided by the employer. Announcements include title, salary information, admission qualifications, filing information, and duties and responsibilities. No unannounced requirements can be considered.  Applications must be filed by the announced date.  The applicant must be a resident of New Jersey and the specified local jurisdiction, unless a different residency requirement is specified or there are not enough available qualified residents.  Applicants for municipal law enforcement or firefighter positions must be under 35 for open competitive examinations, except that applicants under 45 may subtract prior law enforcement experience to meet the 35 year age requirement.  Veterans may subtract their service from their age to determine eligibility.

Types of Examinations.  Examinations may be written; oral; performance evaluation; physical performance tests; assessment exercises; and evaluation of education, training and experience.  The goal is to objectively measure an applicant’s fitness and merit.  Thus, while subjectivity in developing an examination is not forbidden, it must be limited.

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