"New Jersey Employment Lawyers"

Published on: February 4, 2020

New Jersey Civil Service Discipline

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 D new-york-county-courthouse-1540991328RMS-300x200 ivision 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.

Published on: January 15, 2020

Appellate Division Addresses Jurisdiction for Appeals of Tenure Charges Under TEACHNJ Act

by Maurice W. McLaughlin

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In a recent unpublished decision, the Appellate Division of the Superior Court addressed the employment law issue of jurisdiction for appealing discipline of tenured school employees.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. T school-bus-1-300x200 he 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.

Published on: January 13, 2020

McLaughlin & Nardi, LLC Attorneys Successfully Reversed a Decision to Remove an Applicant from a Civil Service List for Appointment as a Jersey City Police Officer

by Robert Chewning, Esq.

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.

Published on: December 3, 2019

Third Circuit Court of Appeals Rules that Some Third-Party Payments to Employees are Properly Included in the Calculation of Overtime Rates

by Maurice W. McLaughlin

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.

Published on: November 25, 2019

New Jersey Supreme Court Rejects Newark School District’s Firing of Tenured Secretary in Major Public Employment Law Decision

by Maurice W. McLaughlin

Both New Jersey’s tenure laws in Title 18A, which govern employees in New Jersey’s public schools, and the New Jersey Civil Service Act in Title 11A and Civil Service regulations are designed to ensure that government employment decisions, such as hiring, firing, promotion, etc., are made based on merit rather than nepotism, cronyism, racism, sexism, favoritism or politics. Of course, these factors still come into play, and employers seek ways around these laws. The New Jersey Supreme Court recently rejected such an attempt by the Newark School District to terminate a tenured secretary.

Brenda Miller was an employee of the Newark School District, which had been taken over and operated by the State of New Jersey. The District had adopted the Civil Service Act, Title 11A of New Jersey Statutes, to govern its employees. As public school employees, however, their employment was also governed by Title 18A, which governs New Jersey’s public grammar schools, middle schools, high schools and state colleges.

Brenda was hired in 1998 and held clerical and secretarial positions through 2012. By virtue of this service she had acquired tenure under Title 18A. These positions were also governed by the Civil Service System, and were considered “classified” titles. In 2012, however, the District reclassified Brenda’s current position to an “unclassified” confidential assistant, which as an unclassified title did not have the same civil service protections as classified positions – indeed, unclassified positions have little more protection than an employment at will job in the private sector. In 2014, citing the unclassified status of Brenda’s title, the District terminated her. It did not provide her with notice or a hearing.

Published on: November 19, 2019

Equal Pay Act

by Pauline M.K. Young

Refugees, Economic Migrants

Governor Murphy signed New Jersey’s Equal Pay Act into law in 2018. The NJEPA takes a necessary step in making pay discrepancies in the workplace more transparent with the hopes that this will address the pay differential between white men minorities, and women. Essentially, it bars any penalty to any employee for requesting or disclosing information regarding any employee’s job title, rate of compensation, benefits, race, gender, ethnicity, or other protected characteristic when the purpose of the inquiry or disclosure to investigate the possibility of discriminatory treatment. (While the NJEPA was originally intended to address inequitable pay for women, it was expanded to cover all protected classes of people.)

This allows for employees to obtain information which previously (and even now) is largely safeguarded by employers as “private” in order to determine whether they are being discriminated against based upon a protected classification. Any employer “policy” which forbids discussing compensation in the workplace could be considered void by the law.

The NJEPA amended New Jersey’s Laws Against Discrimination to enable the use of the protections of that statute. The NJEPA also specifically makes it unlawful to pay employees in protected classes a different rate of compensation when performing substantially similar work considering skill, effort, and responsibilities. Differentials may still exist when based on seniority, merit, education, productivity, experience, and other legitimate business reasons. The Act also allows expands upon the LAD’s typical 2-year statute of limitations by setting forth that limitation period restarts each time the employee receives unequal compensation resulting from a discriminatory decision or practice. The employee may also recover up to 6 years of back pay as a result of a violation by the employer. Additionally, the employee may receive treble damages – meaning that they may recover three times the monetary damages awarded as a result of the pay discrepancy.

Published on: October 7, 2019

Third Circuit Rules Adult Dancers Are Employees Entitled to Overtime and Minimum Wage Protections

by Maurice W. McLaughlin

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The Federal Fair Labor Standards Act requires that employers, including New Jersey employers, pay their non-exempt employees minimum wage and overtime (the vast majority of employees are not subject to an exemptions; the major exemptions are for executive, administrative and professional employees, and outside sales). Independent contractors, however, are not protected by the Fair Labor Standards Act. Claims of misclassification of employees have recently led to significant amounts of litigation.

The United States Third Circuit Court of Appeals recently issued an opinion on misclassification of workers in the case of Priya Verma v. 3001 Castor, Inc., which found that adult dancers were employees entitled to the protection of the Federal Fair Labor Standards Act. While the case arose in Pennsylvania Federal Court, the Third Circuit rules on appeals from federal courts in New Jersey, Pennsylvania, Delaware and the United States Virgin Islands, so it’s decisions determine how federal law, including the Fair Labor Standards Act, will be applied are binding in New Jersey.

Background

Published on: September 26, 2019

Third Circuit Court of Appeals Defines Standard for Finding “Willful” Violations of the Fair Labor Standards Act

by Maurice W. McLaughlin

Willful Violations Under The Fair Labor Standards Act

352099_construction_3-002-300x225 The Federal Fair Labor Standards Act establishes rates of minimum wage and overtime pay which employers must pay to their employees. Employees successfully suing their employers for violations of these requirements can recover their lost wages, and their employers will be required to pay their attorneys fees and litigation costs. The Fair Labor Standards Act provides that willful violations of these requirements will result in double damages – ie., the employer will be required pay the employee twice the amount of wages or overtime it did not pay. A willful violation also extends the statute of limitations for suing from two years to three.

Willfulness: The Question Facing the Third Circuit

Published on: September 24, 2019

New Jersey Adds to Its Already Strong Pro-Employee Legislation With New Wage Theft Act

by Robert Chewning, Esq.

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New Jersey passed the Wage Theft Act on August 6, 2019. It is being viewed as one of the strongest and broadest wage theft laws in the nation, and rightly so. The New Jersey Wage Theft Act increases penalties that employers may be subject to under New Jersey’s Wage and Hour Law with the addition of a liquidated damages provision and further protections for employees who bring retaliation claims. The New Jersey Wage Theft Act also expands the employers who may be liable for employee claims by making both employers and labor contractors jointly and severally liable for violations and prohibiting waivers regarding joint and several liability.

What is Wage Theft?

Wage theft can come in a variety of different forms but boils down to circumstances where an employer does not pay an employee the amount he is owed. The following are a few examples where an employee may have a claim for wage theft: (1) an employee is not getting paid for the full amount of hours worked; (2) a non-exempt employee is not be getting paid overtime wage rates for hours he has worked in excess of 40 hours for a week; (3) an employee’s paycheck from his employer bounces; and (4) an employer deducts time out of an employee’s paycheck for breaks which the employee never took. As you can see from these examples, wage theft is not limited to any one industry or job.

Published on: May 31, 2019

Appellate Division of New Jersey’s Superior Court Explains Standard for Evaluating Motions to Dismiss Claims of Age and Disability Discrimination Under the New Jersey Law Against Discrimination

by Maurice W. McLaughlin

Background: The Law Against Discrimination

New Jersey’s Law Against Discrimination (often referred to as the “LAD” or the “NJLAD”) prohibits discrimination and harassment against employees because of a wide variety of immutable characteristics. Among these are protections against discrimination and harassment because of an employee’s age and disability. The Law Against Discrimination’s protections have been described as among the strongest in the country.

The Caraballero Case