Articles Posted in Civil Service Law

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New Jersey employment law governs the hiring of municipal police officers and firefighters, particularly Titles 11A and 40A of New Jersey Statutes.  These local first responders play critical roles in our society.  New Jersey employment law therefore closely regulates the hiringjoe-b-300x200 process to ensure that New Jersians are served by only the best law enforcement officers and firefighters.

There are two roots for hiring local government law enforcement officers and firefighters.  In civil service jurisdictions, an applicant must pass a civil service examination, score high enough on the list to be reached, pass physical and psychological examinations, pass a background investigation, and successfully complete a police academy course.  Municipalities which have not adopted civil service have more discretion in hiring, in that the applicants do not have to take a civil service examination or be ranked high enough on a civil service hiring list.  However, many non-civil service jurisdictions utilize a “chief’s test” in place of the civil service examination. Civil service municipalities retain some discretion in hiring through the “Rule of Three.”

Initial hires must be at least 18 years of age, but no more than 35, although there are exceptions to the maximum age requirement for veterans and law enforcement officers and firefighters with prior service in another jurisdiction.  They must be New Jersey residents, although recently discharged veterans receive a grace period to move to New Jersey.  A municipality cannot require an applicant to be a resident of the local jurisdiction, but it can give a preference to residents.  residence can also be used as a tie breaker in promotions.  The “veterans preference” is applicable to hiring in civil service municipalities.

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New Jersey’s Requirement for Employers to Provide Reasonable Accommodations for Disabled Employees

New Jersey’s Law Against Discrimination and Title VII of the Civil Rights Act of 1964 prohibit discrimination because of an employee’s disability.  New Jersey civil service law also prohibits discrimination because of an employee’s disability.  These laws require employers to provide7-300x225 reasonable accommodations so that disabled employees can perform their duties.

The regulations promulgated by the New Jersey Division of Civil Rights implementing the Law Against Discrimination’s reasonable accommodation requirement require employers to engage in an “interactive process” with the employee to determine what reasonable accommodations the employer can provide for the employee.

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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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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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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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New Jersey employment law affords significant wage and hour protections to employees through the New Jersey Wage and Hour Law and the New Jersey Wage Payment Law.  Both laws were significantly strengthened by amendments in 2019, adding additional penalties,6-300x225 recovery of attorneys fees, enhanced damages, and a longer, six-year statute of limitations.  One question left open by the Legislature was whether the statute of limitations would be applied retroactively to cover conduct prior to the amendments, or prospectively to cover only conduct from 2019 onward.  The New Jersey Supreme Court has now unambiguously answered that question.

The New Jersey Wage Payment Law

The New Jersey Wage Payment Law was enacted in 1965 and governs the timing and payment of wages.  It prohibits withholdings of wages unless the law expressly allows or requires.  Wages must be paid at least twice per month, and no later than 10 days after the pay period covered.  The employee must be told in advance what she will be earning, and before any changes to her pay are made.  She must be paid all wages due when she leaves employment on the next regular payday.

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The New Jersey Law Against Discrimination prohibits discrimination and harassment in the workplace.  The New Jersey Civil Service Commission published a regulation incorporatingimagesCAWQ89PS this requirement.  However, in the case of Savchenko v. State of New Jersey, the New Jersey Supreme Court found that a portion of this regulation which requested that parties and witnesses keep the investigation confidential had a chilling effect on free speech.  It therefore struck down that portion of the regulation.

Background

The Civil Service Commission understandably seeks to maintain the confidentiality of these investigations, as publication might discourage witnesses from assisting, and victims from coming forward.   The regulation therefore contained a provision which provided that:

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New Jersey employment lawsuits alleging discrimination, harassment or retaliation are often resolved in settlement agreements.  The New Jersey Supreme Court recently clarified theNJ_State_House-300x200 permissible scope of non-disparagement agreements in those settlement agreements in the case of Savage v. Township of Neptune.

Background

Christine Savage was a police officer with the Neptune Township Police Department.  She filed a lawsuit against the Department and certain individuals in 2013 alleging that they violated the New Jersey Law Against Discrimination by sexually harassing her, discriminating against her because of her gender, and retaliating against her because of her complaints of discrimination.  The lawsuit was settled in 2014.  As part of the settlement the Township agreed to give Savage access to training and promote her to sergeant.

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New Jersey civil service law provides employees with an effective avenue for appealing adverse employment decisions to the New Jersey Civil Service Commission.  However, in the case of Matter of Trejo, Police Officer and Union City, a New Jersey appeals court held that an employee may be removed from a civil service hiring list for a negative prior employee disciplinary history.  Thissupreme-administrative-court-3565618_960_720-300x200 decision has significant implications for how employees should handle allegations of misconduct and resulting discipline.

Background

Ana Trejo was a public safety telecommunicator with the Union City Police Department for ten years when she took the civil service examination for police officer.  She passed and was placed on the eligible list.  However, Union City removed Trejo from the list because of her history of civil service employee discipline during her ten year employment as a telecommunicator with the Police Department.  Her disciplinary history included minor discipline for absenteeism; being reprimanded for sharing confidential law enforcement information; and imposition of major discipline for “inappropriate conduct.”  The New Jersey Civil Service Commission gave notice to Trejo that she had been removed from the list for having an “unsatisfactory employment record.”

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