"New Jersey employment law."

Published on: October 22, 2020

Supreme Court Expands Enforceability of Arbitration Policies in New Jersey Employment Law Decision

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-300x201 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.

Published on: September 10, 2020

New Jersey Supreme Court Issues Important Employment Law Decision on Employment Contracts Requiring Arbitration of Wage and Hour Claims

by Maurice W. McLaughlin

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-300x200 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.

Published on: July 10, 2020

Chancery Division in Bergen County Issues Important New Jersey Employment Law Decision on Appeals of Tenure Arbitration Awards by Teaching Staff Members

by Maurice W. McLaughlin

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:

Published on: July 6, 2020

Effect of Criminal Charges and Disposition on New Jersey Public Employees

by Maurice W. McLaughlin

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-station 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”).

Published on: June 20, 2020

New Jersey Supreme Court Issues Important Decision on Ability of Union to Bargain Away Benefits of Public Employees

by Maurice W. McLaughlin

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.

Published on: March 10, 2020

Civil Service Hiring, Eligible Lists, and the Rule of Three

by Maurice W. McLaughlin

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-300x200 placement 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.

Published on: March 2, 2020

New Jersey Civil Service Testing and Examination Appeals

by Maurice W. McLaughlin

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-300x200 knowledge, 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.

Published on: November 12, 2018

While Recent U.S. Supreme Court Decision Extends Federal Age Discrimination Protections for Public Employees, New Jersey Law Already Offered Strong Protection to Older Government Employees

by Maurice W. McLaughlin

creative-signstop-age-discrimination-260nw-520754950-300x215 Amazingly, despite the law being clear for many years that age discrimination in employment is illegal, and despite the fact that both research and experience have shown the value of mature workers, age discrimination against older employees continues to be widespread in New Jersey and the country at large. Both the Federal Age Discrimination in Employment Act and New Jersey’s Law Against Discrimination provide strict prohibitions against employers and supervisors discriminating against older employees.

Sometimes, however, the boundaries of these laws are unclear, and guidance from the Courts is required. On November 6, 2018, the United States Supreme Court issued an important decision affecting the rights of state and local government employees under the Age Discrimination in Employment Act.

The Mount Lemmon Fire District Case and the Age Discrimination in Employment Act

Published on: February 28, 2017

New Case on Teacher Arbitration from New Jersey Supreme Court

by Maurice W. McLaughlin

chalk-1551571__340-300x229 In the case of Bound Brook Board of Education v. Ciripompa, the Supreme Court reviewed the extreme deference which courts are required to give arbitrator’s decisions. However, the Supreme Court explained that this deference to the arbitrator is not unlimited.

In the Bound Brook case, two tenure charges were filed against a teacher. The teacher, who had tenure, had allegedly been engaging in pervasive misuse of his employer-issued computer and inappropriate conduct toward female coworkers, allegedly often in the presence of or involving students. After an investigation, the Board determined that the teacher should be fired and tenure charges were filed against the teacher.

The first count of the tenure charges was “conduct unbecoming.” The second count was not labeled, but contained allegations of inappropriate conduct and harassing behavior toward coworkers, some of a sexual nature, and occasionally involving students. Like the local board of education, the New Jersey Commissioner of Education likewise found dismissal warranted and submitted the charges for review by an arbitrator pursuant to the TEACHNJ Act.

Published on: May 4, 2016

The U.S. Supreme Court Holds that the Civil Rights Act Protects Employees from Retaliation for Perceived Associations

by Pauline M.K. Young

frankfort-105591_960_720 The Supreme Court of the United States has recently issued an opinion holding that, even perceived speech or associations (as opposed to just actual speech or associations) are protected by the Civil Rights Act.

A police officer, Jeffrey Heffernan, working in Paterson, New Jersey filed suit seeking redress for his demotion after he had been seen speaking to staff members for a candidate running for mayor and holding a yard sign supporting that candidate. The candidate was running against the incumbent mayor who had appointed Heffernan’s superiors. Heffernan was specifically demoted due to his “overt involvement” in the candidate’s campaign.

Unbeknownst to Heffernan’s superiors, Heffernan did not actually support the candidate, but was merely picking up the sign for his ill mother.