Labor and Employment

Published on: February 21, 2017

Recent Decision by New Jersey’s Appellate Division Clarifies Requirements for Rice Notice to Employee Whose Employment May be Terminated

student-2052868__340-300x198 Our employment attorneys represent New Jersey public sector employees in disputes with their governmental employers. One area in which we frequently see disputes is the failure to give a “Rice Notice” to employees whose employment may be affected by an action by their governmental employers.

New Jersey employees, including non-tenured employees, have the right to advanced notice whenever a governing body, such as a town council or a board of education, is going to discuss the employee’s employment. This notice is called a “Rice Notice” after the case of Rice vs. Union County Regional Board of Education, which upheld the right. Normally, under New Jersey’s Open Public Meetings Act, personnel actions must be discussed in closed session unless all the affected employees request in writing that the discussion be held in the open during the public session of the meeting. The Rice Notice gives the employee the notice they need to actually exercise that right.

In the recent case of Kean Federation of Teachers vs. Morell, the Appellate Division of the Superior Court of New Jersey had the opportunity to take a fresh look at the requirements for a Rice Notice. In that case the Court was faced with a situation where the Board of Trustees of Kean University delegated the task of evaluating recommendations by the University President for the retention or dismissal of faculty members. The subcommittee evaluated the University President’s recommendations and made its own recommendations to the Full Board. The full Board of Trustees then voted on those recommendations without discussion. The Board argued that because it did not actually discuss any employment matters, but just voted without discussion,a Rice Notice was not necessary.

Published on: January 25, 2017

Educational Emergency Certificates and their Effect on Tenure

by Robert Chewning, Esq.

school-93200__340-300x200 In New Jersey, certifications are generally required for all professional staff members in public schools and other institutions regulated by the New Jersey Department of Education. There are various types of certificates based on the type of employment you are seeking (i.e., teachers, principals, school psychologist, etc).

Emergency certificates are issued to a limited amount of personnel within the educational services category including school social workers, school counselors, and associate library media Specialists. For a full list of positions where emergency certificates may be issued, please visit New Jersey’s Department of Education website.

The regulation governing emergency certifications is N.J.A.C. §6A:9B-5.12, which sets forth when, by whom, and for what reasons emergency certificates may be issued. Emergency certificates may be issued at any point in the school year but, regardless of when they are issued, they expire on July 31^st of each year. They serve an important purpose by allowing a board of education to apply for an emergency certificate for a candidate if that particular board of education is unable to locate a candidate with a provisional or standard certificate to fill the position.

Published on: January 25, 2017

Appealing Civil Service Disqualification for Medical or Psychological Reasons

by Maurice W. McLaughlin

Our firm’s employment lawyers handle a significant number of New Jersey civil service issues. One of the most vexing is removal from a list of eligibles because of medical or psychological disqualification.

Hiring for the vast majority of civil service jobs is determined by merit based on competitive examinations. One thing that may disqualify an applicant is disqualification because of an alleged psychological or medical condition which would render the candidate unable to effectively perform the requirements of the job she is applying for.

Generally the disqualification will not happen until after the examination is complete, the results are tabulated, and a list of eligibles is generated. Prior to an offer of employment being made the employer cannot require the applicant to submit to a medical or psychological examination. After the offer of employment is made, however, the applicant may be required to submit to a medical or psychological examination as a condition of employment, provided that all other applicants to whom offers are extended are required to undergo an evaluation as well. If the results indicate the applicant cannot perform the essential duties of her job because of a psychological or medical condition, the employer can request that the Civil Service Commission remove her name from the list.

Published on: January 23, 2017

Anti-Nepotism Policies in New Jersey Public School Hiring

by Maurice W. McLaughlin

old-books-436498__340-300x200 A problem our employment attorneys frequently encounter is complaints of nepotism in the hiring and promotion of public school teachers. While the hiring of relatives is not per se illegal in New Jersey public schools, there are significant restrictions on it.

The New Jersey Legislature and the New Jersey Department of Education have passed restrictions limiting nepotism based on the Legislature’s spending power. At the local level, restrictions on nepotism are a requirement for the receipt of state aid. Thus, while nepotism is not “illegal,” anti-nepotism policies are required for the receipt of state aid. Since almost all New Jersey local public schools receive state aid, the restrictions on nepotism are virtually universal. The New Jersey Department of Education’s regulations apply to school districts, charter schools and county vocational school districts. These board of education (or trustees for charter schools) must adopt anti-nepotism policies as a condition for receiving state aid.

The policies adopted under these rules restrict employment practices concerning “relatives” and “immediate family members” of board members and chief administrators. In general, their relatives cannot be employed by the same school district or charter school. Likewise, a chief school administrator may not recommend her own relatives or those of a member of the board of education.

Published on: January 19, 2017

Attorneys Fees in New Jersey Civil Service Appeals

by Maurice W. McLaughlin

council-of-state-535721__340-1-300x103 The financial burden of a civil service appeal discourages many employees from filing. However, a successful employee may be able to recover the attorneys fees she spent on the appeal. Our attorneys handle civil service appeals for all of New Jersey’s Public Employees, such as police officers, teachers, firefighters, and administrative persons. Because we are concerned about the impact on our clients’ pocketbooks, we are always looking to see if we can shift the financial burden to the public employer.

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.

Published on: January 9, 2017

Forfeiture of Public Employment for Conviction of a Crime, and the Supreme Court’s Decisions on Waivers of Forfeiture of Public Employment

by Maurice W. McLaughlin

supreme-court-building-1209701__340-300x200 Our employment attorneys represent New Jersey Civil Service employees in appeals of disciplinary action. Recently, New Jersey’s Supreme Court had the opportunity to clarify some of the circumstances in which a government employee can obtain a waiver of the rule that he forfeit his job when convicted of a criminal offense.

In the case of Flagg v. Essex County Prosecutor, the New Jersey Supreme Court had the opportunity to review the effect of a public employee’s conviction for a disorderly persons offense (the equivalent of a misdemeanor) on their government job. New Jersey’s forfeiture law requires that employees forfeit their public employment if the conviction is for a crime (the equivalent of felony) of dishonesty, is required by the New Jersey Constitution, or is a disorderly persons offense “involving or touching such office, position or employment.” However, a subsection of this law provides an exception. This provides that “forfeiture or disqualification… which is based upon a conviction of a disorderly persons or petty disorderly persons offense [misdemeanors] may be waived by the court upon application of the county prosecutor or the Attorney General and for good cause shown.” The law is silent about what standard a prosecutor should use to review such applications.

Flagg was a maintenance worker for the City of Newark. He was convicted in municipal court of illegal disposition of solid waste, a disorderly persons offense. He did this in the course of his job at the direction and in the presence of his supervisor. He was sentenced to a six month loss of his drivers license, a $5,000 fine, and five days of community service. He was not sentenced to jail, nor did the statute provide for jail for this solid waste violation.

Published on: December 21, 2016

Fighting New Jersey’s Rule of Three

by Maurice W. McLaughlin

One of the prime methods of hiring, firing, promotion and discipline of public employees is New Jersey’s civil service. Attorneys from our firm represent employees in appeals from actions by their civil service employers. One of the most significant issues in the civil service hiring process our employment attorneys have encountered is when government employers exercise the “Rule of Three.”

New Jersey’s Constitution requires that hiring in the civil service system must be based on merit and fitness, and that a candidate’s merit and fitness be determined by a competitive examination. The system put in place by New Jersey’s Civil Service Act and the regulations drafted by New Jersey’s Civil Service Commission provide that impartial tests which examine a candidate’s competency are announced, qualified candidates take the test, and then the Civil Service Commission creates a list of “eligibles” from which the candidates must be hired. The highest scorers will receive the top spot on the list. Candidates are to be hired in accordance with their place on the list.

However, an exception applies to this process. Public employers may use the “Rule of Three” to pass over the highest scorer. In the recent case of In re Foglio, New Jersey’s Supreme Court had the chance to examine the Rule of Three. The first thing the Supreme Court did was to explain what the Rule of Three was all about. The Supreme Court explained: “Under the Rule of Three, after a list of at least three candidates is certified, the appointing authority has the discretion to select from among the top three candidates in filling a vacancy. The Rule of Three recognizes employment discretion and seeks to ensure that such discretion is not exercised in a way inconsistent with `merit’ considerations. While ensuring that competitive examinations winnow the field of candidates, the Rule of Three does not stand as ‘an immutable or total bar to the application of other important criteria” by a government employer’.”

Published on: December 20, 2016

Fair Labor Standards Act Regulations

by Maurice W. McLaughlin

Background: New Regulations Adopted

In 2014 the United State Department of Labor issued new regulations governing overtime exemptions. The regulations did not change the main overtime exemptions, but it did raise the salary threshold for them to apply.

Existing Exemptions

Published on: December 13, 2016

Changes to the Fair Labor Standards Act

by Pauline M.K. Young

dollar-1889027__340 The Fair Labor Standards Act (“FLSA”) is a federal statute enacted in 1938 with the goal of setting national standards for employees, including minimum wage, overtime requirements, child labor restrictions, and other protections. Our employment attorneys represent management and employers in litigation under FLSA violations and litigation about its state counterpart, the New Jersey Wage and Hour law. Our

Many changes have been made to the FLSA over the years to try to keep up with the changes in inflation the socioeconomic climate of the country. On March 13, 2014, President Obama published a Presidential Memorandum directing the DOL to review and revise the regulations protecting workers through minimum wage and overtime standards. In May of 2016, the United States Department of Labor (“DOL”) responded by updating the FLSA to extend overtime pay protections and minimum salaries – which would mark the first significant change in 40 years.

The rule sets a minimum salary requirement of $47,476 for salaried workers – which more than doubled the prior minimum of $23,660. Generally, employees are paid on an hourly basis and then paid one and a half times their regular hourly pay for all hours worked in excess of 40 hours per week. However, certain employees are “exempt” from the hourly pay and overtime requirements. Some of the most comment exemptions are for: professionals (lawyers, accountants, engineers, etc.) executives or administrators (managers, officers, etc.), and commissioned salespeople. For employees not being paid on commission, these exempt workers are generally paid an annual salary as opposed to an hourly wage.

Published on: December 3, 2016

New Jersey’s Civil Service Appeals

by Maurice W. McLaughlin

council-of-state-535721__340 Our employment law attorneys represent government employees in New Jersey Civil Service appeals.

One of the most criticized but least understood areas of New Jersey employment law is the Civil Service System. Employers complain that New Jersey’s Civil Service System makes it too difficult to fire employees who are not carrying their weight. Employees, especially prospective employees, complain that civil service makes it too difficult to obtain jobs. However, the Civil Service System is there for an extremely important reason.

New Jersey – gasp – has a history of corruption and political patronage when it comes to awarding government jobs, and while the old civil service system helped, it did not eliminate it. After the long reign of Frank (“I am the law”) Hague in Jersey City, New Jersey said enough is enough. It held a constitutional convention, and the New Jersey Constitution of 1947 provided that civil service selections and appointments had to be based on merit, determined by test if possible. This was to take politics, corruption, nepotism and favoritism out of employment decisions so that merit was the only reason employees obtained or kept their jobs.