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Progressive Discipline

Progressive discipline is a principle followed in New Jersey employment law, in both civil service and non-civil service jurisdictions, including public schools.  In progressive discipline, a public employee’s prior disciplinary history will be considered in determining the appropriate penalty for disciplinary violations.  Thus, a 6-300x225government employee with a clean disciplinary record would receive a lesser penalty for the same violation for which another employee with previous discipline would receive a harsher penalty.  For example, an employee who was late for the first time might receive no discipline, while one who has been late fifty times in a year might be terminated.  Even with first offenses, however, some infractions are so severe that major discipline, even termination, may be appropriate for a first offense.

The Johnson Case

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New Jersey public employees have multiple venues to litigate employment claims against their government employers.

Forums Available to New Jersey Public Employeescolumns-round-300x201

New Jersey government employees can sue in New Jersey state court, beginning with the Superior Court of New Jersey which sits in each county, for violation of state laws such as the New Jersey Conscientious Employee Protection Act, the New Jersey Civil Rights Act and the New Jersey Law Against Discrimination, and then the state appellate courts.  For employment-related civil rights claims or violations of Federal laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act or the Fair Labor Standards Act, employees can file suit in the Federal courts beginning with the United States District Court for the District of New Jersey which sits in Camden, Trenton and Newark, with appeals heard by the United Staes Third Circuit Court of Appeals and then the United States Supreme Court.  A civil service employee who alleges that she was disciplined in violation of civil service laws can appeal to the New Jersey Civil Service Commission, with appeals from Commission decisions being heard by the Appellate Division of the Superior Court of New Jersey.  Tenured teachers and other education employees can appeal to the New Jersey Department of Education.  Public employees can utilize the grievance procedure in the contract for allegations of violations of the contract for discipline, pay violations and other related matters.  Grievance procedures in many union contracts often provide for binding arbitration with the Public Employment Relations Commission (“PERC”). PERC will also hear allegations of unfair labor practices, binding arbitration of certain contract negotiation impasses, scope of negotiations disputes, bargaining unit disputes, and certain appeals of discipline by law enforcement officers who are not employed in civil service jurisdictions.

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New Jersey teachers are required to possess certificates issued by the State Department of Education in order to be employed in a teaching capacity.  These certificates are not easy to get, and have educational and testing requirements.  They are required to ensure that those teaching New Jersey students have the requisite skills.  Without them teachers cannot teach.  However, teaching3-225x300 certificates may be suspended or revoked for multiple reasons.

What are the grounds for teacher certificate revocation or suspension in New Jersey?

In New Jersey, teacher certificates can be revoked or suspended due to unbecoming conduct, inefficiency, incapacity among other reasons.  Teaching certificates may also be suspended when teachers leave their job without completing the contractual term of employment without the board of education’s consent.

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Should I file a civil service appeal?  Well, read what a New Jersey appellate court’s recent decision said, and you will probably decide the answer is yes.new-york-county-courthouse-1540991328RMS-300x200

Background

Mina Ekladious had nine years of experience as a firefighter and earned a certification as a Firefighter I before he was conditionally hired by the Jersey City Fire Department.  The offer was contingent upon completing the Morris County Fire Academy, which trains prospective Jersey City firefighters.  He was removed as a firefighter for failing the physical examination at the Fire Academy.  Ekladious appealed his removal to the New Jersey Civil Service Commission, which referred the case to the Office of Administrative Law for a hearing.

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New Jersey wages are governed by a set of laws: the New Jersey Wage and Hour Law, the Wage Collection Law, the Wage Theft Act, and the Wage Payment Law.  These New Jersey employment laws govern the amount and timing of wages owed to New Jersey employees.  A New Jersey appeals court issued a precedential decision on when commissions must be paid under the Wagecourthouse-NY-300x199 Payment Law, which governs when wages must be paid, in the case of Musker v. Suuchi, Inc.

Background

Rosalyn Musker was employed as a senior platform delivery manager by Suuchi, Inc.  Part of her compensation was commissions on the gross revenue from sales of software, software related services, and related subscriptions for apparel manufacturers.  These sales were governed by a company commission plan.  The commission plan contemplated continuing revenue streams.  Only revenue from these sources, and no others, was governed by the commission plan.

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The Federal appeals court which hears New Jersey cases issued a precedential decision explaining the definition of “disability” for purposes of disability discrimination under the Americans with Disabilities Act. tess-225x300

Background

Andrew Morgan was employed by Allison Crane & Rigging LLC as a millwright laborer.  On September 29, 2020 he injured his lower back on the job.  He advised his supervisors, but continued his shift even though he was in “severe pain.”  He then saw a chiropractor who diagnosed Morgan with a bulging or herniated disc in his lower back.  He began treatment twice a week, and had pain when he sat, walked or turned.  The chiropractor placed him on light duty, which he advised his supervisors of in a meeting on October 7, 2020; they advised him not to file a workers compensation claim.  The light duty was to continue until November 25th, at which point the chiropractor advised that he could resume his full duties.

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New Jersey construction contractors and suppliers often have difficulty collecting money due them for their work or supplies.  One of the tools available to help ensure payment is including a personal guarantee in their construction contracts.  However, personal guarantees have certain requirements.  The Appellate Division of the Superior Court of New Jersey addressed this issue inhouse-225x300 the case of Extech Building Services, Inc. vs. E&N Construction, Inc., Shawn Roney and Joaquim Ferreira, et al.

Background

Extech Building Services, Inc., was the supplier of building materials on a construction project for the general contractor, E&N Construction, Inc.  There was a written six paragraph agreement in which Extech extended credit for the project to E&N.  The last paragraph of the agreement also had a provision for personal guarantees; however, the identity of the guarantors was not provided.  There were three signature lines.  Two had the names of Shawn Roney and Joaquim Ferreira, who were executives at E&N, which were signed; a third line was blank and unsigned.

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The United States Court of Appeals for the Third Circuit, which hears appeals from federal district courts in New Jersey, Delaware, Pennsylvania and the United States Virgin Islands, recently rejected a challenge to the New Jersey Temporary Workers’ Bill of Rights in the case of New Jersey Staffing Alliance vs. Cari Fais, Acting Director of the New Jersey State Division of Consumersupreme-court-building-1209701__340-300x200 Affairs in the Department of Law and Public Safety.

Background: The New Jersey Temporary Workers Bill of Rights

The New Jersey Temporary Workers’ Bill of Rights was passed by the New Jersey Legislature in 2023.  It was designed to protect temporary workers employed in New Jersey.  It enacted several measures to meet this goal.  These include disclosure requirements and certification procedures.  It also imposes joint and several liability on both staffing firms and the businesses which obtain temporary workers through those staffing firms.

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New Jersey employment law prohibits both disability discrimination and retaliation against an employee who objects to disability discrimination.  A New Jersey appeals court examined both situations in the case of Algozzini vs DGMB Casino LLC, d/b/a Resorts Casino Hotel.imagesCAWQ89PS

The Explosion

Bart Algozzini was director of slot operations at Resorts Casino Hotel for five years when he suffered second and third degree burns over seventy percent of his body during a boat fuel explosion on July 17, 2019. He was hospitalized for a month.  He spent two weeks in a medically induced coma, was intubated, resuscitated after a cardiac arrest, and went through multiple skin graft surgeries.  Thereafter he went to an inpatient rehabilitation, followed by outpatient physical therapy.   He was discharged from outpatient physical therapy on January 30, 2020 but still needed to walk with a cane and use a shower chair.

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Progressive discipline is a bedrock principle in New Jersey civil service law.  However, while flexible, progressive discipline has its limits.  The New Jersey Supreme Court recently issued a precedential employment law decision examining when progressive discipline allows forcapt-andrew-209x300 termination of a law enforcement officer’s employment for even a first offense in the case of In the Matter of Brian Ambroise.

Background

The case involved an appeal from an earlier decision by the Appellate Division of the Superior Court of New Jersey.  I wrote about it here, so I will only briefly outline the facts of the case and how it got to the Supreme Court.

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