Articles Tagged with “New Jersey Employment Lawyers”

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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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Because the purpose of the New Jersey Civil Service System is to remove politics, nepotism and favoritism from the hiring and disciplinarydisciplinary-1326277__340-300x300 processes to ensure that employment decisions are based on merit and fitness, just cause must be found for imposing discipline.  And because the employer is the government, all discipline, New Jersey’s Court’s have explained, “is governed by principles of notice, due process and fundamental fairness.” The key to this is notice and the opportunity to be heard at a hearing.

Written Notice and the Opportunity for a Hearing Before Appointing Authority

Before disciplinary action may be taken against a permanent civil service employee or during an employee’s working test period, the employee must get written notice and the opportunity for a hearing on major discipline.  This notice comes in the form of a “Preliminary Notice of Disciplinary Action” (“PNDA”).  The PNDA must set forth the charges and give a specification.  It must give the employee the opportunity for a hearing prior to major discipline. The PDNA should give the employee notice of all the charges and specifications against him so he can prepare a defense.

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New Jersey Civil Service law establishes procedures for hiring and promoting government employees in New Jersey state and local statehousejpg-daf3a85399187d6b-300x200government civil service jurisdictions.

Appointments

In Civil Service, “appointment” means getting a job, whether through initial hiring, promotion, transfer or otherwise.  All initial and subsequent appointments must be submitted for review and approval of the New Jersey Civil Service Commission.  The Commission will notify the employer of whether it has approved or disapproved the action, and the reasons for any disapproval.  The employer then provides written notice to the affected employees.

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How a New Jersey public employment position is classified can have enormous effects on an employee’s rights.  This blog describes some of the details about how the New Jersey Civil Service Commission classifies New Jersey Civil Service jobs, and what the consequences of thoseNJ_State_House-300x200 classifications are.

 
Some terms

Under New Jersey Civil Service Law, jobs are classified by “titles.”  Titles are based on duties, responsibilities, and qualifications.  “Career service” employees serve in “classified” titles, “unclassified employees” serve in “unclassified” titles.

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In an important decision interpreting New Jersey employment law, the Supreme Court ruled in the case of Melnyk versus the Delsea Regional High School District that analyzing whether a position is eligible for tenure protection depends on the statutory requirements, not teacher-300x200on how the employer chooses to label it.

Paula Melnyk was a long-time, tenured, full-time, certified, special education and English teacher during the day for the Board of Education of the Delsea Regional High School District, since 1991.  From 2002 through 2015, except for a break in the 2009-2010 school year, she also taught at in the Board’s BookBinders Program.  This was an evening program for students who had been removed from the traditional daytime classroom for behavioral issues, or who otherwise could not participate in the regular school program.  State law required the Board of Education to provide this service, whether through its own staff and facilities, or by agreement through another district.  The Board chose to provide the services itself.

The Board characterized Melnyk’s work in this program as “extra-curricular,” and therefore not eligible for tenure.  Had it been a position eligible for tenure, Melnyk would have earned it, since even with the break in 2009-2010, she had more than the three years and a day then required to earn tenure (that time frame was increased in 2012 by the TEACHNJ Act, but it was not applicable when Melnyk would have earned tenure).

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Discipline is a major component of New Jersey’s Civil Service system.  Discipline under New Jersey Civil Service law is either “major” or “minor.”

Major Discipline

The main procedural consequence of the difference major discipline and minor discipline is that major discipline can be appealed to the New Jersey Civil Service Commission, while minor discipline can only be challenged in the Superior Court of New Jersey.  Major discipline is civil-servcie-1800s-300x165defined as a suspension or fine of more than five days.  Major discipline includes removal, disciplinary demotion, and suspension or fine for more than five working days.  The touchstone for all civil service disciplinary procedures, however, is that “The theme of fairness threads its way through the notice, hearing, and right of appeal provisions of our Civil Service Act, and finds particular pertinence in those sections requiring that the causes for [discipline, including] removal constituting ‘just cause’ be enumerated with specificity.”

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No discussion of New Jersey employment law would be complete without New Jersey’s Civil Service System, which governs all state government employees, and employees of twenty of New Jersey’s twenty-one counties, and the majority of its municipalities.

As far back as 1961, the Appellate Dnew-york-county-courthouse-1540991328RMS-300x200ivision gave a cogent summary of the disciplinary procedures in New Jersey’s Civil Service Act, which is worth quoting ver batim.

Disciplinary proceedings against a civil servant are not only an attempt to determine the status of a particular individual; they are a statutorily authorized action to redress a wrong committed against the people of the State by one in whom the public trust has been officially reposed. The proceedings are therefore penal, or at least Quasi-penal, in nature, and deeply embedded constructional principles, supported by fundamental notions of fairness, dictate that in such an action the statute or regulation defining the alleged violation be construed to comport with the fair meaning of the language used. The theme of fairness threads its way through the notice, hearing, and right of appeal provisions of our Civil Service Act, and finds particular pertinence in those sections requiring that the causes for removal constituting ‘just cause’ be enumerated with specificity. The governing consideration, that one be fairly and completely advised of the nature of the charges against him, loses all effectiveness if it is not reinforced by a requirement that the proscribed activities and contingencies warranting disciplinary proceedings be set forth with reasonable particularity and construed accordingly.

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Employee Choices for Challenging Discipline

In a recent unpublished decision, the Appellate Division of the Superior Court addressed the employment law issue of jurisdiction for appealing discipline of tenured school employees.

When a New Jersey government employee faces discipline, there are several avenues for relief depending on the nature of the alleged wrong by the employer and the relief sought.  If the alleged violation is one of constitutional rights, discrimination, or whistleblowing retaliation, the employee can sue in New Jersey state or federal court, or appeal in an administrative forum.  Tschool-bus-1-300x200he choice will depend on the relief sought.  If the employee does not want to continue working for the employer or does not care about correcting the discipline, but rather only cares about collecting money damages, then she would sue in court (New Jersey state courts and New Jersey law provide greater procedural and substantive advantages for employees, so they usually file in the Superior Court rather than federal court).  If the employee is more concerned about getting her job back or correcting the discipline, often the administrative route (which can also provide back pay) is the best choice.  When there are no issues of constitutional rights, or discrimination or retaliation, then the administrative route is the only option.

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Police Car, White Male, 3D Model
On December 6, 2019, the New Jersey Civil Service Commission recently reviewed and rescinded its September 5, 2018 decision which removed an applicant’s name from an eligible list for Jersey City police officer. The case was argued by Maurice W. McLaughlin, Esq., and Robert K. Chewning, Esq.

After the Civil Service Commission made its September 5, 2018 decision, the applicant was required to file an appeal in the Appellate Division of the Superior Court of New Jersey. On appeal, the applicant argued that the Civil Service Commission’s decision was arbitrary, capricious, and constituted an abuse of discretion based on the evidence which established the applicant’s Jersey City residence prior to the August 31, 2016 announced closing date through the date until the present.

The Appellate Division remanded the case to the Civil Service Commission to review the factual record and reconsider its prior decision. On remand, the Civil Service Commission found: (1) that appellant had established by a preponderance of the evidence that he had lived in Jersey City as of the August 31, 2016 closing date; and (2) that the Civil Service Commission had previously erred in reviewing relevant documents including applicant’s motor vehicle address change form, driver’s license, and lease agreement. A copy of the New Jersey Civil Service Commission’s decision can be found here.

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American, Bills, Business, Cheque
In the case of Secretary of United States Department of Labor vs. Bristol Excavating, Inc., the United States Court of Appeals for the Third Circuit, recently issued an important, precedential opinion on when payments by third-parties need to be included by employers in the calculation of their employees’ overtime pay rates.

Bristol Excavating, Inc. (Bristol) is a small excavation contractor.  Bristol was a subcontract for Talisman Energy, Inc., a large producer of natural gas.  Bristol provided Talisman with equipment, labor and services at Talisman’s drilling sites.  Bristol’s employees often worked more than 40 hours per week, and Bristol paid them “overtime,” or one and a half times the regular hourly rate which Bristol normally paid them (“time and a half”) for all the hours they worked over 40 hours in one week.

Talisman offered workers at its sites – not just its own employees – separate bonuses rewarding them for safety, efficiency and productively measured by completion of work.  Bristol’s employees asked Bristol if they could participate.  Bristol agreed, and also agreed to do the administrative work.  This administrative work included paying the bonuses through Bristol’s payroll, and taking out all applicable tax withholdings.  Bristol did not include these bonuses in its calculation for overtime pay for its employees because it was not Bristol’s money with which the employees were being paid.

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