U.S. Third Circuit Court of Appeals Applies Overly Broad Analysis in Reaching Right Decision in Layoff Rights Dispute Under New Jersey Civil Service Law
The United States Court of Appeals for the Third Circuit recently issued an opinion interpreting the New Jersey Civil Service Act regarding the reemployment rights of laid off civil service employees. It probably reached the right decision, but its reasoning was far too broad and may have a negative impact on future cases.
In that case, Tundo vs. County of Passaic, two probationary Passaic County Corrections officers with disciplinary problems were laid off as part of a mass layoff for budgetary reasons. They had not completed their “working test period” (probationary period) yet. Thereafter, the County obtained funds and sought to rehire some of the laid off employees. It therefore contacted the New Jersey Civil Service Commission so that the Commission could create a list from which the County could rehire laid off workers, which the Commission did. There was dispute about whether the list was a “revived” list – or not whether this was a revived “regular reemployment” list or a revived “open competitive” list was left unclear. The County challenged the placement of the two laid off officers on the list. The Civil Service Commission rejected the challenge. The County therefore had the officers apply for the job, but as part of the application process the County required them to sign a release of their right to sue the County. They refused to sign and the Civil Service Commission removed their names from the list. The officers then sued under Section 1983 of the Civil Rights Act of 1871, arguing that their due process rights were violated by their removal from the list. The Third Circuit disagreed, holding that employees do not have a property right to their position on a reemployment list.
The decision was correct in this case because the officers had no right to be on a special reemployment lists. However, in many cases, other officers do have a legal right to be on employment or remployment list, which would give them a “property interest” triggering due process protections before their governmental employer could remove them.
The key is their status as employees. There are several types of reemployment lists, a regular reemployment list and a special reemployment list, but both require an employee to be permanent before they are entitled to a spot. Neither officer, however, was “permanent” because they had not completed their working test periods. A regular reemployment list covers the reemployment of permanent employees who have left their position voluntarily. Permanent employees who resign in good standing, retire or are voluntarily demoted, may request reemployment by indicating availability to their appointing authorities. If the appointing authority recommends that such reemployment is in the best interest of the service, the Department shall place the employee’s name on a reemployment list. A regular reemployment list is subject to certification to all appointing authorities in a jurisdiction.
A special reemployment eligible list, on the other hand, includes current and former “permanent employees laid off or demoted in lieu of layoff from permanent titles.” It also includes “former and current permanent employees who were laid off, laterally displaced or demoted in lieu of layoff.”
Appointing authorities must hire from a special reemployment list certified by the Department, if one exists.
According to the Civil Service Commission’s regulations, when more than one list exists for a particular position, the order of priority of the lists is:
- Special reemployment when the available position is in the department from which the eligible was laid off or demoted in lieu of layoff, then
- Promotional, then
- Special reemployment when the available position is located in a department other than that from which the eligible was laid off or demoted, then
- Regular reemployment, police reemployment or fire reemployment, and then
- Open competitive.
However, regardless of the type of list they were on, these officers had no right to be on a reemployment list because they had not competed their working test periods. They were therefore not “permanent” employees who were legally entitled to a place on the list. Thus, the best they could be on was an open competitive list. However, this would not have helped them, because a revived open competitive list would be behind other reemployment lists to which permanent employees did have a legal right.
However, by giving an overbroad holing rejecting the legal rights of permanent civil service employees to spots on these reemployment lists under the New Jersey Civil Service Act and the New Jersey Civil Service Commission’s regulations, the court reached beyond the case at hand to limit the rights of a class of employees who were not parties to the case. The Court’s reasoning was that the Code and Act gave the Commission the ability remove former employees from a list. However, this reasoning misses the mark. The law requires that the employees be placed on the list unless an express exception applies. Therefore the authority of the Commission to remove employees is restricted to certain grounds. If those grounds do not apply then the candidate has the legal right – and thus a “property interest” – to her spot on the list, just as New Jersey courts have repeatedly found that tenure provides employees with a protectable property interest in their jobs, even though there are still certain grounds for firing them.
Thus, the court came out with the right decision here because these were non-permanent employees who had no right to be on any reemployment list in the first place, but it gave it too broad a reading, thus applying it to a large class of other employees who did have a legal right to a spot on the list.
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