Articles Posted in Labor and Employment Law

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A key New Jersey employment law issue was recently examined by an appeals Court in the case of C.S. vs Brick Recycling Company.  The Appellate Division of the New Jersey Superior Court examined when communications with attorneys are privileged when those attorneys are examining claims of sexual harassment or discrimination.4-225x300

C.S.’s Claims

C.S. worked for Brick Recycling Company as a truck driver.  He made an internal complaint to Peter Decenzo, the company’s owner and president, that the corporate financial controller, M.R., made unwanted sexual advances toward him, improperly accessed his bank records, and improperly disclosed the information in those records to others..  While M.R. was  a company supervisor, she was not C.S.’s supervisor.  The following day, DeCenzo told C.S. and M.R. to have no have no further contact with each other.  M.R. left an angry note on C.S.’s car, for which DeCenzo admonished her.

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The New Jersey Law Against Discrimination is one of the strongest anti-discrimination employment laws in the country.  Under the Law Against Discrimination, discriminatory harassment which constitutes a “continuing violation” can be actionable even if it occurred before the two-year statute of limitations provided that it was a continuous course of conduct which only ended within the limitation period.  A New6-300x225 Jersey appeals court recently examined when harassment does, and doesn’t, constitute a continuing violation in the case of Michael Acey vs. City of Paterson, Manuel Ojeda and William Rodriguez.

Background: The Allegations

According to the Appellate Division’s opinion, Michael Acey was hired by the City of Paterson in 1998 as a laborer in the Department of Public Works. He was promoted to supervisor in 2012.  In 2017 he was promoted to supervisor of the night shift at his own request so that he could work a second job.

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An appellate court recently issued two opinions in appeals from the New Jersey Civil Service Commission regarding the termination of three police officers sought by the Jersey City Police Department because the officers were positive for marijuana use in urinalysis tests.  In the decisions, the court set a line between when termination is allowed and when prohibited under New Jersey’s regulation of marijuana use.joe-b-300x200

Three Positive Urinalysis Tests

The three officers, Norhan Mansour, Omar Polanco and Montavious Patten, all had positive results for marijuana from urinalysis tests.  In subsequent interviews with Jersey City Police Department Internal Affairs investigators, they admitted the use.  Officers Mansour said that he had purchased the marijuana at a legal dispensary and produced receipts.  Officer Polanco also stated that he had purchased the marijuana at a legal dispensary but did not have receipts.  Officer Patten purchased the marijuana from a friend named “Sal,” who told Patten that he had purchased it from a legal dispensary.  There was no allegation that the officers were under the influence of marijuana on the job.

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New Jersey Civil Service List Removal Appeals

Under New Jersey civil service law, employment decisions, including hiring, must be based solely on merit.  The civil service system therefore employs examinations which objectively test a candidate’s fitness.  Successful candidates are then placed on a hiring list in order of their scores, with certain preferences for veterans.  New employees must then be hired off the list in order of their placement, subject to the Rule of Three.  Candidates for positions as law enforcement officers or fire fighters includes testing of their psychological fitness.  A candidate may be removed from7-300x225 a hiring list for failure of these examinations.

However, because New Jersey’s civil service laws are designed to ensure that employment decisions are based on merit and not because of favoritism, nepotism or discrimination, there is a robust due process procedure for list removal appeals.   The candidate first appeals his removal from the list with the New Jersey Civil Service Commission.  Thereafter, the unsuccessful party may appeal an unfavorable decision to the Appellate Division of the Superior Court, and then ultimately to the New Jersey Supreme Court (which only hears a small, select number of appeals).

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Background

John Sloan was an employee of Cape Regional Medical Center and Cape Regional Health System, Inc. (collectively “Cape”), from February 2018 until October 2020, serving as director of plant operations.  His duties included making sure that the facility’s maintenance, repair and safety systems were in compliance with their legal requirements.

Sloan made complaints to his supervisors that defendants had not complied with fire-safety regulations by failing to inspect fires extinguishers, exit lights and sprinkler systems (the “fire6-300x225 complaints”), particularly during the increased patient load and decreased staffing caused by Covid.  He also complained about the temperature and humidity levels in the operating rooms and electrical work in the sewage ejector pit (“the safety complaints”).  He alleged that he was told to ignore the violations and threatened with discipline if he did not, and that he was yelled at and false accusations were made about his work performance.  Eventually he was fired on October 16, 2020.  He claimed that he was terminated in retaliation for his complaints about the defendants’ legal and regulatory violations.

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Background: Anti-Discrimination Statutes and the Background Circumstances Rule

Title VII of the United States Civil Rights Act of 1964 and the New Jersey Law Against Discrimination both prohibit employers from illegally discriminating against their employees.  Normally the evaluation is straightforward under the McDonnell Douglas Test.  However, in the case of reverse discrimination, i.e., where an employer is accused of discriminating against an employee who is in the majority, New Jersey andpaterson-pd-john-and-andrew-300x183 many Federal courts imposed a higher burden of proof on the employee.  In cases of reverse discrimination, employees in New Jersey state courts and many federal courts had to satisfy the “Background Circumstances Rule,” which requires that the employee prove that he “has been victimized by the unusual employer who discriminates against the majority.”  However, in 2025, the United States Supreme Court unanimously struck down the Background Circumstances Rule in Title VII cases in the case of Ames v. Ohio Department of Youth Services.

The U.S. Supreme Court Steps In

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The New Jersey Appellate Division examined a town’s termination of payments to its former employee under a separation agreement when the employee became employed by another town.

Background4-225x300

Alberto Cabrera was the municipal clerk of the Town of Guttenberg, New Jersey.  As so often happens, the parties wished to terminate their relationship.  They entered into a Separation Agreement which provided that Cabrera would stop performing his duties and go on paid leave beginning on August 18, 2022, and the leave would terminate with his retirement on March 31, 2023.  He would be on the payroll and paid his regular salary by the Town through that day.  He would continue to get medical benefits through March 31, 2023.  The Town would also pay him his accrued but unused vacation, sick, compensatory and personal days for 2022 and 2023.  Cabrera agreed to submit a letter requesting this paid leave of absence, which he did the same day.  The Town’s Mayor and Council voted to approve the agreement.  Cabrera inquired about amending the agreement once, but it was never changed in any way.

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The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act

The New Jersey Arbitration Act and Federal Arbitration Act generally require enforcement of agreements to arbitrate disputes.  This extends to the enforcement of arbitration agreements in employment contracts.

However, in response to the #MeToo Movement, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.  The EFAA provided:new-york-county-courthouse-1540991328RMS-300x200

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The State Board of Examiners, which operates within the New Jersey Department of Education, is the agency charged with licensing New Jersey educators.  It determines educator fitness and issues certifications required for New Jersey teachers and other teaching staff members.  It also has the authority to revoke or suspend certificates in appropriate circumstances.  The New Jersey Supreme Court recently examined the limits of the Board’s authority in the case of In the Matter of the Certificates of Nicholas Cilento, State Board of Examiners, New Jersey Department oftess-225x300 Education.

Background

Nicholas Cilento was a special education teacher with the Woodbridge Township School District.  On May 21, 2019, he was relieved of his teaching responsibilities because it was alleged that he consumed alcohol on school grounds.  Tenure charges were filed in November 2019.  Cilento appealed the charges and after an evidentiary hearing in which Cilento admitted struggling with alcoholism and consuming alcohol on school grounds, an arbitrator upheld charges of conduct unbecoming, violations of state and municipal law, violations of District policy.  The arbitrator imposed a three-month unpaid suspension and reinstatement on a “last chance” basis.

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A New Jersey employment law decision recently examined the effect of a conviction under the newly enacted New Jersey Police Training Act and with the New Jersey Police Training Commission in the case of Garcia vs. New Jersey Police Training Commission. 

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Background

Gregory Gacia was a police officer with the Wharton, New Jersey, Police Department.  As a result of a search of his residence, he was charged with false representations and gun possession offenses.  Thereafter, on November 14, 2022, he entered into a plea agreement whereby he pled guilty to one count of possessing a large capacity ammunition magazine in the fourth degree.  He was sentenced to one year of probation, with the judgment of conviction entered on January 13, 2023.  Garcia appealed his decision to the Appellate Division of the Superior Court of New Jersey, when affirmed his conviction on October 7, 2024.  He thereafter appealed to the Supreme Courts of New Jersey and the United States, both of which refused to hear his appeal.

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