Labor and Employment

Published on: July 11, 2016

A Look into What Constitutes “Conduct Unbecoming a Teacher” as the Basics for the Revocation or Suspension of a New Jersey Teacher’s Certificate

skills-835747_960_720 In New Jersey, obtaining a teaching certificate is a difficult task, requiring a great deal of credentials. For the individuals who are issued a teaching certificate, it is a testament to the individual’s dedication, commitment, and passion for teaching. Therefore, if your certificate is at risk of being revoked or suspended, it is important to know your rights and whether to challenge such a determination.

The State Board of Examiners may revoke, suspend or deny a teacher’s certificate for many grounds set forth in the New Jersey Department of Education’s regulations in the New Jersey Administrative Code, N.J.A.C.§6A:9B-4.4. One of the grounds that the State Board of Examiners may revoke, suspend or deny a teaching certificate is on the basis of “conduct unbecoming a teacher.” Like many legal terms, “conduct unbecoming a teacher” is inherently broad and encompasses a wide variety of teacher activity. Due to its broad nature, a look into how courts have defined and analyzed “conduct unbecoming a teacher” is important if your certificate is being revoked, suspended or denied to determine whether to appeal the revocation or suspension.

Courts have defined “conduct unbecoming a teacher” in multiple ways including :

Published on: June 6, 2016

Proving Disabilities in Cases Under New Jersey’s Law Against Discrimination

by Maurice W. McLaughlin

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New Jersey employment law has long protected employees against discrimination in employment. New Jersey was one of the first states to do so, passing the Law Against Discrimination in 1947. One of the things that New Jersey’s Law Against Discrimination protects employees from is discrimination because of disabilities. This means that employers are prohibited from doing three things. First, employers cannot take adverse actions, such as firing or demotion, against employees because of their disabilities. Second, employers cannot harass or create a hostile work environment for employees because of their disability. Finally, employeer cannot fail to make reasonable accommodations so that employees can do their job even with their disabilities.

When an employer violates New Jersey’s Law Against Discrimination, employees may sue their employees. If they are successful they can recover their economic damages (such as lost pay), compensation for their emotional distress, the attorneys fees and litigation expenses they spent in the lawsuit, and sometimes punitive damages. Of course, the employees must first prove that the employers violated the New Jersey Law Against Discrimination, and then they must prove their damages.

Proving that an employee had a disability is part of the employee’s required proofs. In many cases there is no dispute because the disability is apparent – if an employee is missing a leg the disability is obvious, and in many cases the disability is admitted. However, in many cases the disability is neither apparent nor admitted by the employer. How then to prove that the employee had the disability? In many cases, this requires testimony from a doctor.

Published on: May 4, 2016

The U.S. Supreme Court Holds that the Civil Rights Act Protects Employees from Retaliation for Perceived Associations

by Pauline M.K. Young

frankfort-105591_960_720 The Supreme Court of the United States has recently issued an opinion holding that, even perceived speech or associations (as opposed to just actual speech or associations) are protected by the Civil Rights Act.

A police officer, Jeffrey Heffernan, working in Paterson, New Jersey filed suit seeking redress for his demotion after he had been seen speaking to staff members for a candidate running for mayor and holding a yard sign supporting that candidate. The candidate was running against the incumbent mayor who had appointed Heffernan’s superiors. Heffernan was specifically demoted due to his “overt involvement” in the candidate’s campaign.

Unbeknownst to Heffernan’s superiors, Heffernan did not actually support the candidate, but was merely picking up the sign for his ill mother.

Published on: May 4, 2016

The Rights of Untenured Teachers Under New Jersey Employment Law

by Maurice W. McLaughlin

pre-1272291__180 New Jersey’s employment laws governing the rights and responsibilities of New Jersey teachers are found in Title 18A of New Jersey Statutes. The laws are complex, but our employment attorneys have significant experience in representing New Jersey teachers in this complex area. Indeed, Maurice McLaughlin wrote the seminal treatise on the rights of public school teachers under New Jersey employment law. This blog briefly summarizes untenured teachers’ rights.

Status of Non-Tenured Teachers

New Jersey is an “employment at will” state. This means that normally an employee can be fired for any reason –even mistaken reasons – so long as the motivation is not illegal. New Jersey’s tenure protection laws provide strong protections from the harshness of employment at will, but until teachers acquire tenure they have few protections against termination, even without cause.

Published on: May 2, 2016

Filing a Notice of Appeal with the Department of Education: What You Must Do Before Its Too Late

by Robert Chewning, Esq.

knowledge-1052011__180 New Jersey’s Department of Education has issued regulations which govern “controversies and disputes” with public employees such teachers and principals. The “controversies and disputes” cover a wide variety of issues including but not limited to the State Board of Examiner’s (“Board’s”) decision to block, revoke, or suspend a teacher’s certificate.

If you are faced with such a controversy or dispute or have been adversely affected by a decision from the Board or other agency, these regulations provide a legal right to challenge the decision through a petition of appeal. The petition of appeal must be filed in the specific format and must be filed within the time limitations provided under N.J.A.C. §6A:3-1.3(i). Failing to strictly comply with these requirements may prevent you from challenging the Board’s or other agency’s decision or order.

The time period to file a petition of appeal begins from the date you receive a notice of “a final order, ruling or other action” by the Board, a board of education, or other agency. The notice of the final decision must set forth the facts that you have a right to know which the decision is based on. However, the notice may not be clear that the decision is final or provide you with information regarding your right to file a petition of appeal. Therefore, it is extremely important that you address any notice of a decision that affects your employment promptly and seek legal counsel regarding your rights to appeal before they are time barred.

Published on: March 16, 2016

Our New Jersey Employment Attorneys Represent Teachers and Other School Employee in Tenure Charges

by McLaughlin & Nardi, LLC

Fighting Tenure Charges Against New Jersey Teachers

Our New Jersey employment attorneys represent teachers and other school employees in tenure charges, wrongful discharge, harassment and other wrongful treatment.

In 2012, the TEACHNJ Act, pushed through the Legislature by Governor Christie, made major changes to New Jersey’s tenure laws. Among other changes, it revamped the appeal process for New Jersey tenure charges. Instead of having New Jersey Department of Education make the final determination of tenure charges after a fact-finding trial by an administrative law judge, appeals of tenure charges are now decided by binding arbitration. Because of the finality of these arbitration decisions, and the limited grounds for appeal, it is important to have experienced New Jersey employment attorneys representing you.

Published on: November 12, 2015

Counting “Replacement” Time Toward Acquisition of Tenure

by Maurice W. McLaughlin

McLaughlin & Nardi, LLC’s employment attorneys represent teachers in all aspect of employment law. One of the most important areas of New Jersey employment law to teachers is the requirements for acquiring tenure.

Under the TEACHNJ ACT of 2012, acquisition of tenure went from three years to four years. There are several ways to meet this requirement. First, a teacher can work in her position for four full consecutive calendar years. Second, the teacher can serve for four consecutive school years, and begin employment in the following year; the common way this is expressed is “four school years plus a day.” Third, a teacher can attain tenure if her total time worked equals greater than four school years within any five consecutive school years. This final method allows a teacher to take time off to care for a baby without having to re start her tenure clock from day one.

However, there is an exception that provides that certain “time” does not count. New Jersey’s education laws provides that someone who is replacing another employee while that employee is out on a leave of absence, or period of disability or disqualification – a frequent example being a teacher who is hired to replace another teacher out on maternity leave – cannot use that replacement time to count for the acquisition of tenure. This is relatively straightforward in the case, for example, of someone who comes in to replaces a teacher who is out on maternity leave, and then loses her job when the first teacher returns. However, what about someone who is hired to replace a teacher on maternity leave, but then gets another teacher position and stays when mom returns to work? Can she count her original time because she is a permanent employee and her time was continuous, even if the initial time was served as a replacement? This is a far more difficult question for which until recently the courts had not spoken.

However, recently the Supreme Court of New Jersey finally addressed this question straight on. In that case, three teachers were let go by the Bridgewater Board of Education. If the time the spent as replacements for other teachers out on leave, they would have tenure. However, the Board of Education argued that this time should not count under the “replacement” exception to counting time for tenure. The teachers, obviously, argued that since they had been working straight for more than the time required for tenure, it should count. Two had received some form of notice that the time would not count, one did not.
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Published on: October 27, 2015

The Use of New Jersey’s Rule of Three in Civil Service Hiring and Promotion

by Maurice W. McLaughlin

McLaughlin & Nardi, LLC’s employment attorneys represent New Jersey civil servants and other public employees.

One of the most vexing issues in New Jersey employment law in the public sector is the “Rule of Three.” New Jersey’s Civil Service laws require that hiring and promotion be based on merit and demonstrated ability, where possible through an examination. After an application is complete, an “eligible list” is promulgated with all of the applicants listed in order of their overall scores. Hiring and promotion must be done in order of rank of their overall scores.

However, New Jersey’s Rule of Three allows the appointing authority to hire or promote from any one of the top three slots for the position, allowing it to skip a higher ranked candidate. This allows the hiring authority a limited degree of discretion in hiring. However, to avoid bias, discrimination, cronyism, nepotism and favoritism, the appointing authority must give a written statement of its “legitimate” reasons.

In the recent case of In re Foglio, New Jersey’s Supreme Court rejected Ocean City’s use of the Rule of Three when it was hiring firefighters. Nicholas R. Foglio, who had been a volunteer fighter, took the civil service test to become a paid firefighter and went through the application process. He was ranked second on the eligibility list. Ocean City hired three new firefighters. It chose the highest ranked firefighter, but skipped Foglio to hire the next two known ranked candidates. Foglio had been a volunteer firefighter for several departments. He had already logged more than a thousand hours. The highest ranked candidate was a student teacher; the third, for whom Foglio was skipped, was a bartender; and the fourth, for whom Foglio was also passed over, was a lifeguard. Ocean City stated that its reason for invoking the Rule of Three to pass over Foglio was that the two lower ranked candidates “best meet[] the needs of Department,” without any further elaboration. The Supreme Court explained that while the applicant still bore the burden of showing that the appointing authority’s reasons are not legitimate, but that burden is only triggered after the appointing authority gives an adequate – and real – statement of reasons for the action. when exercising his right to challenge the appointing authority’s exercise of the Rule of Three, he can’t reasonably be expected to do so without a detailed statement of reasons. The Court explained that while the statement of reasons not need be detailed, it had to give fair notice of the reasons. It could not just give a conclusory and unrevealing statement. As the Court explained, Ocean City could just have said “we liked them better” and it would essentially been the same thing without a statement giving notice of actual, legitimate reasons. The Court held that the appointment of the lower ranked candidate is “presumptively in violation of the principles of merit and fitness.” Thus, while the applicant bears the burden of showing that the appointing authority’s reasons are not legitimate, that burden is only triggered after the appointing authority gives an adequate – and real – statement of reasons for the action. The Court therefore remanded the case. It ordered Ocean City to provide a statement of reasons, which Foglio could then appeal. In re Foglio, 207 N.J. 38, 45-46 (2011).
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Published on: July 24, 2015

Why Civil Service Matters

by Maurice W. McLaughlin

Our employment attorneys represent New Jersey public employees, such as police officers, firefighters, public works workers, professionals and others, who are covered by the civil service system. We hear many complaints about civil service: The rules are too rigid; it makes it too hard to fire an employee; it makes it too hard for an employee to find a job; discipline is either too hard or too easy to impose, depending on your point of view; the rules are too complex and burdensome.

Many of these complaints are true. However, they miss the point. The New Jersey civil service system is there for a reason. New Jersey has a long history of corruption, cronyism, bribery and nepotism. While there are many funny stories from this history, from Frank Hague’s “I am the law” quote to the recent closing of the George Washington Bridge, this history is awful. It has a terrible effect on government.

Hiring and promotion based on politics, bribes or “who you know” means that merit is removed from the equation. When merit is removed, government operations and the government’s services to its citizens inevitably suffer, and the cost of providing those services therefore increases.

To remedy this, New Jersey adopted the Civil Service system over a century ago in 1908. Indeed, in a wave of reform after World War II, and in reaction to the corrupt local government under Depression Era “bosses” like Hague, New Jersey passed the Constitution of 1947 which overhauled New Jersey’s state and local government. The drafters of the 1947 Constitution enshrined the principal that hiring and promotion should be based on merit, not politics, nepotism, cronyism or bribes. The Constitution specifically provides that “Appointments and promotions in the civil service of the State, and of such political subdivisions [counties and towns] as may be provided by law, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive….” Indeed, this is why civil service is often referred to as the “merit system.”
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Published on: March 19, 2015

Effect of Teachers’ Termination or Early Resignation

by Maurice W. McLaughlin

Effect of Teachers’ Termination or Early Resignation
Our employment attorneys represent New Jersey teachers and other public employees. One issue that commonly arises is the suspension or revocation of a teacher’s license when she leaves without the required notice or is terminated for cause. Our attorney’s experience is that both leaving early and termination for cause can have drastic and severe consequences when reported to the Department of Education. It may render the teacher unemployable.

Leaving Early
Normally a teacher is required to give 60 days notice before she quits. However, there are many times when a teacher may want to leave before the normally required 60 day notice. For instance, she may have had a better offer in another district or she may just need a break. The reasons are many. However, there could be potentially severe consequences which result from this decision. A teacher who leaves employment prior to the expiration of her employment, generally requiring at least 60 days notice if prior to the end of the academic year, is deemed guilty of misconduct, and the Commissioner may suspend her certificate for up to one year.

Termination
When an employee is faced with termination, she may choose not to avail herself of her remedies if the board of education allows her to resign rather than be fired. Local boards can use this as a tool to get rid of teachers they don’t want but don’t have grounds to validly fire because the consequences of termination for cause are so dire that the teacher may not want to chance it. This is grossly unfair by the boards, but it is a common tactic.

Revocation and Suspension
The New Jersey Department of Education’s Board of Examiners has the power to revoke or suspend a teacher’s certificate because of demonstrated inefficiency, incapacity, conduct unbecoming a teacher or “other just cause.” The phrase “other just cause,” in turn, is defined to include offenses under the New Jersey’s “forfeiture statute,” which requires that a government employee’s employment be terminated upon conviction of certain offenses. These offenses include crimes of dishonesty, crimes of the third degree or above, crimes touching on the certificate holder’s office or when required by the Constitution. Other laws further define “just cause” to include endangering the welfare of a child or incompetent person; abuse, abandonment, cruelty and neglect of a child; resisting arrest; offenses involving the manufacture, transportation, sale, possession, distribution or habitual use of a controlled dangerous substance or drug paraphernalia; a crime involving the use of force or the threat of force to or upon a person or property including, but not limited to, robbery, aggravated assault, stalking, kidnapping, arson, manslaughter and murder; any crime of whatever degree relating to firearms, other dangerous weapons and instruments of crime; any crime of the third degree; any crime of the fourth degree where the victim was a minor; recklessly endangering another person; terroristic threats; criminal restraint; luring or enticing child into motor vehicle, structure or isolated area; causing or risking widespread injury or damage; criminal mischief; burglary; usury; threats and other improper influence; perjury and false swearing; resisting arrest; escape; bias intimidation; or conspiracy to commit any of these crimes.
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