Labor and Employment Law

Published on: July 10, 2020

Chancery Division in Bergen County Issues Important New Jersey Employment Law Decision on Appeals of Tenure Arbitration Awards by Teaching Staff Members

The Chancery Division of New Jersey’s Superior Court recently issued a public employment law decision in the case of Petrella v. The Hackensack Board of Education which is important for New Jersey teaching staff members because it examined the grounds for overturning an arbitration decision on tenure charges under the TEACHNJ Act. judge-gavel-1461998219JBc-300x200

Under New Jersey employment law, tenure confers many benefits on teaching staff members. A teacher or other teaching staff member, such as an athletic director, who has tenure may not dismissed or have their pay reduced for any reason other than incapacity, inefficiency, conduct unbecoming, “or other just cause.” It also gives teaching staff members appeal rights if tenure charges are filed against them, which includes binding arbitration under the TEACHNJ Act.

In the Petrella case, tenure charges were filed against a tenured athletic director for:

Published on: July 6, 2020

Effect of Criminal Charges and Disposition on New Jersey Public Employees

by Maurice W. McLaughlin

New Jersey employment law provides that government employees may be fired for conviction of a crime, and for many crimes they must be fired. However, if they are exonerated they may be reinstated to their position. They may be subject to further discipline, but if they are not they may also receive back pay, police-hoboken-train-station seniority and benefits for the period of their suspension.

Suspension During Criminal Charges

New Jersey Civil Service Commission regulations provide that an employee’s conviction of a crime is grounds for discipline. An employee suspended while a criminal complaint or indictment is pending must be served with a Preliminary Notice of Disciplinary Action (known as a “PNDA”). The PNDA should include a statement that forfeiture of the employee’s position may result, and that the employee may choose to consult with an attorney. In this case representation by an attorney is always advisable. Within five days of receipt of the PNDA, the employee may request a departmental hearing. If no request is made (within five days or an agreed upon extension) the employer may issue a Final Notice of Disciplinary Action (an “FNDA”).

Published on: June 26, 2020

United States Supreme Court Holds that Federal Employment Law Bans Discrimination Against LGBT Employees – Just as New Jersey’s Law Against Discrimination Already Does

by Maurice W. McLaughlin

In a landmark decision, the United States Supreme Court has ruled that discrimination because of a person’s sexual orientation or gender identity constitutes illegal sex discrimination in Violation of Title VII of the Civil Rights Act of 1964. This ruling applies nationwide, and means that employers may not fire, demote, harass, refuse to hire, or take any other negative action against employees because they are gay, lesbian, bisexual or transgender. This has long been the state of us-supreme-court-300x200 New Jersey employment law under New Jersey’s Law Against Discrimination

Title VII and the Bostock Case

Title VII prohibits discrimination against employees because of sex. Title VII specifically provides that

Published on: June 20, 2020

New Jersey Supreme Court Issues Important Decision on Ability of Union to Bargain Away Benefits of Public Employees

by Maurice W. McLaughlin

The New Jersey Supreme Court recently issued an important employment law decision in the case of Barila v. Board of Education of Cliffside Park regarding the ability of unions to bargain away employee benefits enjoyed under prior contracts. teacher-300x224

Benefits, such as time off, are terms and conditions of employment which may be bargained for in collective negotiations. (The term “collective negotiations” is used in the public sector instead of “collective bargaining” because, unlike in the private sector, government employees do not have the right to strike under New Jersey employment law.) The resulting contract (or “collective negotiation agreement”) sets the terms and conditions of employment, provided the parties have bargained in good faith and the employees receive the minimum levels required by statute.

In this case, under prior contracts between the Cliffside Park Board of Education and the teachers union, including the most recent one in effect from 2012 through 2015, longer term employees could carry over and be paid for their unused sick days up to $25,000. Not all employees could do so, however, because the New Jersey Legislature had passed a law limiting payment for unused sick time to $15,000 for employees who commenced work on May 21, 2010 or thereafter. The statutory limit did not apply to employees who started work before May 21, 2010.

Published on: June 6, 2020

New Jersey Civil Service Layoffs Rights

by Maurice W. McLaughlin

In the tough economic times brought on by COVID-19, many governors and veterans-300x200 mayors, including New Jersey’s Governor Murphy, have said that widespread layoffs may be necessary if federal assistance is not forthcoming. Our attorneys represent New Jersey Civil Service employees, and we see the struggles they are facing. Given this, we thought the time was right to review the layoff rights available under New Jersey Civil Service law.

Layoffs

A layoff is the termination of a permanent employee’s employment because of economic reasons. Demotions or reduction of hours for economic reasons are also treated as layoffs, triggering the rights and procedures applicable to layoffs.

Published on: June 2, 2020

Ensuring Maximum Forgiveness on Paycheck Protection Program (PPP) Funds Under the CARES Act

by Pauline M.K. Young

As a result of the Novel Coronavirus (“COVID-19”), the federal government has passed significant legislation in an attempt to provide relief to businesses small-business-300x215 struggling with economic hardships as a result of widespread closures and stay-at-home orders. One major part of these governmental actions includes the passage of the Coronavirus Aid, Relief, and Economic Security Act (also known as the “CARES Act”) on April 2, 2020.

The CARES Act provides for approximately $2 trillion in aid through expanded unemployment assistance, individual relief checks, tax credits, loans, and grants to businesses which were closed or significantly effected by COVID-19, and funding to hospitals and health care facilities. Of this, approximately $350 billion was allocated to the CARES Act’s Paycheck Protection Program (“PPP). When that money was almost immediately sought by the millions of businesses seeking assistance, an additional $175 billion was additionally allocated.

The PPP limited its funding to each company to two and a half times the company’s average monthly payroll costs. While the PPP is considered a loan program, the funds may largely (or entirely) be forgiven as long as the company uses the funds for approved expenses. The details of exactly which expenses would be considered approved and how these funds could be used has been the subject of much uncertainty over the past several weeks. Indeed, the SBA (Small Business Administration) has posted additional rules and guidance on the matter more than 10 times in two months.

Published on: March 23, 2020

Six Steps for Filing for Unemployment Insurance Benefits in New Jersey

by Pauline M.K. Young

In the time of the Coronavirus (COVID19), many people are concerned about the likelihood of needing to file for unemployment benefits in New Jersey in the near future.

Certainly, many people will be in need of New Jersey State assistance in 2020 and beyond as a result of the coronavirus pandemic and its effects.

Published on: March 12, 2020

New Jersey Civil Service Commission List Bypass Appeals

by Robert Chewning, Esq.

Hello.

This is Robert Chewning from McLaughlin & Nardi. I am here today to talk about Civil Service Commission appeals, specifically list bypass appeals.

Published on: March 2, 2020

New Jersey Civil Service Testing and Examination Appeals

by Maurice W. McLaughlin

The key to New Jersey Civil Service hiring and promotion is the examination. The State Constitution and New Jersey Civil Service Act require merit-based appointments based, whenever possible, on examinations.

Announcements. The New Jersey Civil Service Commission is responsible for administrating examinations which fairly test applicants’ mulitple-choice-exam-300x200 knowledge, skills and abilities for the job. Announcements are posted on the Commission’s website, and provided by the employer. Announcements include title, salary information, admission qualifications, filing information, and duties and responsibilities. No unannounced requirements can be considered. Applications must be filed by the announced date. The applicant must be a resident of New Jersey and the specified local jurisdiction, unless a different residency requirement is specified or there are not enough available qualified residents. Applicants for municipal law enforcement or firefighter positions must be under 35 for open competitive examinations, except that applicants under 45 may subtract prior law enforcement experience to meet the 35 year age requirement. Veterans may subtract their service from their age to determine eligibility.

Types of Examinations. Examinations may be written; oral; performance evaluation; physical performance tests; assessment exercises; and evaluation of education, training and experience. The goal is to objectively measure an applicant’s fitness and merit. Thus, while subjectivity in developing an examination is not forbidden, it must be limited.

Published on: February 23, 2020

Civil Service Disciplinary Procedures at the Employer Level

by Maurice W. McLaughlin

Because the purpose of the New Jersey Civil Service System is to remove politics, nepotism and favoritism from the hiring and disciplinary disciplinary-1326277__340-300x300 processes to ensure that employment decisions are based on merit and fitness, just cause must be found for imposing discipline. And because the employer is the government, all discipline, New Jersey’s Court’s have explained, “is governed by principles of notice, due process and fundamental fairness.” The key to this is notice and the opportunity to be heard at a hearing.

Written Notice and the Opportunity for a Hearing Before Appointing Authority

Before disciplinary action may be taken against a permanent civil service employee or during an employee’s working test period, the employee must get written notice and the opportunity for a hearing on major discipline. This notice comes in the form of a “Preliminary Notice of Disciplinary Action” (“PNDA”). The PNDA must set forth the charges and give a specification. It must give the employee the opportunity for a hearing prior to major discipline. The PDNA should give the employee notice of all the charges and specifications against him so he can prepare a defense.