This is important to the individual employee, of course, but also to the public at large. America is a democracy, and one of the key points to any form of a democracy is access to the government. Since the judiciary is one of the coequal branches of government, access to the court house is an important right. Shifting the costs of litigation to the employer after an employee’s successful appeal is one way to keep the doors to justice open to less well-off employees.
This principal was applied recently by in the case of In re Anthony Hearn, heard by the Appellate Division of the Superior Court of New Jersey. Anthony Hearn was a certified public accountant in the New Jersey Office of Compliance Investigations. He was an “unclassified” employee of the State of New Jersey. Hearn was demoted for allegedly violating certain provisions of the State’s anti-discrimination policy.
Hearn appealed to the Merit System Board (“MSB”), the predecessor of the current New Jersey Civil Service Commission, which referred the case to an administrative law judge (“ALJ”) for a hearing. The ALJ found that Hearn did not discriminate, and recommended Hearn be reinstated to his previous job with back pay he would have earned during his demotion and payment of attorneys fees by the State. The MSB agreed and reinstated Hearn, but refused to award back pay or order reimbursement of his attorneys fees. Hearn appealed to the Appellate Division of New Jersey’s Superior Court.
The Appellate Division agreed that Hearn had not proven that he was entitled to back pay. The burden rests squarely on the employee to prove back pay he allegedly lost because of his employer’s wrongful action. Thus, after proving that the employer took illegal action, an employee must prove that he suffered lost pay as a result, and the amount of pay he lost. Hearn did not offer any evidence of what he lost so he could not recover his lost pay.
The court disagreed about the attorneys fees, however, it held that the award of attorneys fees was mandatory under New Jersey’s Civil Service laws and regulations. This is true regardless of whether the employee was in a career or unclassified civil service position. Likewise, while the MSB had found that the demotion was not disciplinary. The Appellate Division disagreed and found that a demotion for an alleged violation of an anti-discrimination policy was indeed a disciplinary act, and therefore Hearn was entitled to have the Department of Education reimburse him for his attorneys fees. The MSB’s (and now the Civil Service Commission’s) regulations require the award of attorneys to employees who successfully fight disciplinary charges. The current version of the regulation (which merely changes MSB to Civil Service Commission) states that “The Civil Service Commission shall award partial or full reasonable counsel fees incurred in proceedings before it and incurred in major disciplinary proceedings at the departmental level where an employee has prevailed on all or substantially all of the primary issues before the Commission.” Thus, when a disciplinary action is taken against a public employee in New Jersey and the employee prevails, the employer must be required to pay the employee’s attorneys fees.
Indeed, the Appellate Division noted that even if the charges weren’t disciplinary, the New Jersey Administrative Code provides that MSB could have awarded counsel fees “for sufficient cause based on the merits of the particular case.”
So the bottom line is that attorneys fees are available if an employee wins a civil service appeal of disciplinary action, and may possibly be available in other appeals as well provided that the employee demonstrates “sufficient cause.”
Our employment attorneys represent public employees in appeals of discipline and other wrongful action by employers before New Jersey’s Civil Service Commission. Call us at (973) 890-0004 or e-mail us to set up an appointment for a consultation. We are here to help.