Labor and Employment

Published on: January 31, 2020

New Drug and Alcohol Reporting Requirements for Transportation Companies in 2020

Truck, Transportation, Vehicle
In 2016, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (“FMCSA”) announced a new rule establishing a database for information regarding violations of drug and alcohol testing regulations by commercial motor vehicle drivers. While the rule went into effect in 2017, the requirement for FMCSA-regulated employers to begin searching and reporting on this database did not take effect until January 6, 2020.

Therefore, regulated employers are now required to report information regarding any violations of the DOT’s drug and alcohol regulations through the FMCSA’s database (called “Clearinghouse”). This will allow employers to identify drivers who are prohibited from operating a vehicle because of prior violations.

“Regulated employers” include employers in the trucking or transportation industry who either hold a Commercial Driver’s License (“CDL”) themselves or whose employees hold a CDL, and who operate a commercial motor vehicle(s) in any state which has (1) a gross vehicle weight of 26,001 pounds or more, or (2) is designed to carry 16 or more passengers (including the driver), or (3) is involved in transporting hazardous materials.

Published on: January 30, 2020

Background on the Development and Reasons Behind New Jersey’s Civil Service System

by Maurice W. McLaughlin

There are many people who complain that Civil Service is a terrible hindrance to efficient government. Managers complain that Civil civil-case Service rules hinder their ability to run their organizations by hiring, firing and imposing discipline as they believe is best. Citizens often complain Civil Service makes it too hard to get rid of “bad apples.” Employees complain that Civil Service makes promotions and transfers too difficult. Applicants complain that the Civil Service system makes it too hard to get hired. All these criticisms are valid, as far as the go. However, they miss the mark because they focus on the trees but miss the forest. New Jersey’s Civil Service System was adopted to combat some real and grave problems with state and local government. Without Civil Service these problems would continue today unchecked. Civil Service isn’t perfect, but New Jersey is a far better place because of it.

New Jersey has a long history of government corruption; it is by no means a new phenomenon. This included a “spoils system” rewarding the winners of elections with the ability to award jobs to their supporters, outright bribery, political favoritism, nepotism and outright discrimination in hiring and keeping government jobs. It was a disgrace.

In 1908 the early twentieth century Progressive Movement led New Jersey to adopt its first Civil Service laws, and to establish the Civil Service Commission to regulate Civil Service practices. Then, in 1947, a constitutional convention was held at Rutgers University, in which a new state Constitution was adopted. The goal of the constitutional convention was to reform many areas of New Jersey’s state and local governments. One area it specifically addressed was Civil Service. Article VII, section 1 of the New Jersey Constitution of 1947 provided that:

Published on: January 29, 2020

New Jersey Bans Discrimination Based on Hair Styles

by Maurice W. McLaughlin

People Of Uganda, People, Sad, Emotional
The Wrestling Incident

During an incident on December 19, 2018, a referee required an African American wrestler at Buena Regional High School choose between cutting his dreadlocks or forfeiting his wrestling match. Rather than forfeit the match, the wrestler chose to cut his hair. Because the incident had indicia of being racially motivated, or at least having a racially disparate impact, and allegations of racism by the same referee had previously been made, the New Jersey Division on Civil Rights (DCR) and the New Jersey State Interscholastic Athletic Association (known as NJSIAA, the Association self-regulates high school sports in New Jersey) begin a joint investigation. The NJSIAA eventually suspended the referee for two years.

The New Jersey Division of Civil Rights’ Guidance

Published on: January 22, 2020

Appeals From Psychological or Medical Disqualification of Applicants for Law Enforcement or Firefighters Positions

by McLaughlin & Nardi, LLC

Good afternoon. We are here today to talk about removal from eligible lists because of failure to pass a psychological exam.

The way the hiring process for firefighters and law enforcement officers in civil service goes in New Jersey is that first there is a job opening. It’s posted. Then the applicant will submit an application and take a test for the job.

Published on: January 15, 2020

Appellate Division Addresses Jurisdiction for Appeals of Tenure Charges Under TEACHNJ Act

by Maurice W. McLaughlin

Employee Choices for Challenging Discipline

In a recent unpublished decision, the Appellate Division of the Superior Court addressed the employment law issue of jurisdiction for appealing discipline of tenured school employees.

When a New Jersey government employee faces discipline, there are several avenues for relief depending on the nature of the alleged wrong by the employer and the relief sought. If the alleged violation is one of constitutional rights, discrimination, or whistleblowing retaliation, the employee can sue in New Jersey state or federal court, or appeal in an administrative forum. T school-bus-1-300x200 he choice will depend on the relief sought. If the employee does not want to continue working for the employer or does not care about correcting the discipline, but rather only cares about collecting money damages, then she would sue in court (New Jersey state courts and New Jersey law provide greater procedural and substantive advantages for employees, so they usually file in the Superior Court rather than federal court). If the employee is more concerned about getting her job back or correcting the discipline, often the administrative route (which can also provide back pay) is the best choice. When there are no issues of constitutional rights, or discrimination or retaliation, then the administrative route is the only option.

Published on: January 14, 2020

Appellate Division Issues First Published Opinion on the New Jersey Pregnant Workers Fairness Act

by Maurice W. McLaughlin

New Jersey’s Law Against Discrimination and the Pregnant Workers Fairness Act

New Jersey employment law has long been in the forefront of protecting employees’ civil rights baby-feet and prohibiting discrimination in the workplace. While Congress did not pass Title VII until 1964, the Legislature passed the New Jersey Law Against Discrimination in 1945. Since then the LAD has been expanded to protect more types of workers from discrimination because of who they are and give them a wider array of rights and protections. Most recently, in 2014 the Legislature passed the New Jersey Pregnant Workers Fairness Act, again which amended the New Jersey Law Against Discrimination, this time to prohibit discrimination against pregnant workers, and to require reasonable accommodation for physical arising from pregnancy, recovery from childbirth, and breastfeeding. It prohibited employers from penalizing employees for being pregnant.

The Appellate Division of New Jersey’s Superior Court recently issued the first published opinion interpreting the New Jersey Pregnant Workers Fairness Act in the case of Kathleen J. Delanoy v. Township of Ocean.

Published on: January 13, 2020

McLaughlin & Nardi, LLC Attorneys Successfully Reversed a Decision to Remove an Applicant from a Civil Service List for Appointment as a Jersey City Police Officer

by Robert Chewning, Esq.

Police Car, White Male, 3D Model
On December 6, 2019, the New Jersey Civil Service Commission recently reviewed and rescinded its September 5, 2018 decision which removed an applicant’s name from an eligible list for Jersey City police officer. The case was argued by Maurice W. McLaughlin, Esq., and Robert K. Chewning, Esq.

After the Civil Service Commission made its September 5, 2018 decision, the applicant was required to file an appeal in the Appellate Division of the Superior Court of New Jersey. On appeal, the applicant argued that the Civil Service Commission’s decision was arbitrary, capricious, and constituted an abuse of discretion based on the evidence which established the applicant’s Jersey City residence prior to the August 31, 2016 announced closing date through the date until the present.

The Appellate Division remanded the case to the Civil Service Commission to review the factual record and reconsider its prior decision. On remand, the Civil Service Commission found: (1) that appellant had established by a preponderance of the evidence that he had lived in Jersey City as of the August 31, 2016 closing date; and (2) that the Civil Service Commission had previously erred in reviewing relevant documents including applicant’s motor vehicle address change form, driver’s license, and lease agreement. A copy of the New Jersey Civil Service Commission’s decision can be found here.

Published on: December 16, 2019

Timing as Circumstantial Evidence of Retaliation in Employment Law Cases

by Maurice W. McLaughlin

Whistleblower, Clock, Read, Hours
When facing claims of retaliation for reports on objections about discrimination under the New Jersey Law Against Discrimination or Title VII of the Federal Civil Rights Act of 1964 (or for whistleblowing under New Jersey Conscientious Employee Protection Act), courts are often faced with the situation where there is no direct evidence in the form of an admission, document, email or tape recording. Therefore, when examining whether an employer took an action because of retaliation, employees are often forced to rely upon circumstantial evidence. One of the strongest types of circumstantial evidence in cases where the employee alleges she was retaliated against because of her objections about discrimination is the amount of time which elapsed between the objection and the employer’s adverse action. However, this is not the sole element which courts will consider – nothing happens in a vacuum.

The United States Court of Appeals for the Third Circuit recently examined just such a situation in a case about Title VII retaliation allegation in the case of Jessica Harrison-Harper v. Nike, Inc., d/b/a/ Converse, Inc. (The Third Circuit hears Federal appeals from the courts of New Jersey, Pennsylvania, Delaware and the United States Virgin Islands).

In that case, Jessica Harrison-Harper was an employee of Nike and manager at a Converse retail store. She was hired in July 2014. During the first several months of her employment numerous complaints were received about Harisson-Harper. For example, a customer complained about her refusal to accept the return of a pair of shoes bought at the store. Nike received multiple complaints about Harrison-Harper from her employees about her mismanagement and demeanor, and also from a neighboring Nike store. There was a complaint that Harrison-Harper violated a family discount policy. She was counseled regarding failure to document employee time and attendance issues, and about her plan to rehire an employee she had previously fired for calling a subordinate a “bitch.”

Published on: December 9, 2019

“Independent Contractor” May be a Disappearing Classification for New Jersey Workers

by Pauline M.K. Young

Construction, Building, Build, Industry Small business and contractors often hire independent contractors rather than employees for certain projects and services. Generally, this allows the business to avoid responsibility and expense related to withholding and paying taxes, and obtaining insurance for those workers. However, case law in New Jersey over the years has slowly been narrowing the definition of who may qualify as an independent contractor.

In 2015 for example, the New Jersey Supreme Court decided the case of Hargrove v. Sleepy’s LLC. In that case, the Court found that, when defining a worker as an employee or independent contractor in relation to wage and hour or wage payment claims. The courts will consider the factors set forth in the “ABC” Test. The ABC test considers: (1) the control exercised by the employer of the worker’s work, (2) whether the services performed by the worker were outside the usual course of the employer’s business or performed outside the employer’s place of business, and (3) whether the individual worked in an independently-established business or occupation. So, in order to be an independent contractor, the worker had to be: (1) free from the employer’s control, (2) working away from the employer’s place or business OR working in an area outside the area of work generally conducted by the employer, AND (3) customarily engaged in his/her own established business or profession.

In November of 2019, a new bill was introduced in the New Jersey Senate proposing to limit the use of the independent contractor classification for workers even more. In relation to the second prong, workers could not qualify as independent contractors by physically working outside of the place of business of the employer; the worker would have to provide a service to the employer which is outside the usual course of the employer’s type of business.

Published on: December 3, 2019

Third Circuit Court of Appeals Rules that Some Third-Party Payments to Employees are Properly Included in the Calculation of Overtime Rates

by Maurice W. McLaughlin

American, Bills, Business, Cheque
In the case of Secretary of United States Department of Labor vs. Bristol Excavating, Inc., the United States Court of Appeals for the Third Circuit, recently issued an important, precedential opinion on when payments by third-parties need to be included by employers in the calculation of their employees’ overtime pay rates.

Bristol Excavating, Inc. (Bristol) is a small excavation contractor. Bristol was a subcontract for Talisman Energy, Inc., a large producer of natural gas. Bristol provided Talisman with equipment, labor and services at Talisman’s drilling sites. Bristol’s employees often worked more than 40 hours per week, and Bristol paid them “overtime,” or one and a half times the regular hourly rate which Bristol normally paid them (“time and a half”) for all the hours they worked over 40 hours in one week.

Talisman offered workers at its sites – not just its own employees – separate bonuses rewarding them for safety, efficiency and productively measured by completion of work. Bristol’s employees asked Bristol if they could participate. Bristol agreed, and also agreed to do the administrative work. This administrative work included paying the bonuses through Bristol’s payroll, and taking out all applicable tax withholdings. Bristol did not include these bonuses in its calculation for overtime pay for its employees because it was not Bristol’s money with which the employees were being paid.