Labor and Employment

Published on: July 24, 2015

Why Civil Service Matters

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.”
Continue reading

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.
Continue reading

Published on: March 16, 2015

New Jersey Supreme Court Weighs In On Who Is An Employee and Who Is An Independent Contractor Under New Jersey Employment Law

by Maurice W. McLaughlin

The New Jersey Supreme Court recently clarified an employment law issue which has been vexing employment lawyers for decades. In its recent landmark decision in Hargrove versus Sleepy’s LLC, the Supreme Court laid out the rules for determining when a worker should be considered an employee under different New Jersey employment laws. The specific laws it addressed governed the payment of wages and overtime to employees.

This is an extremely important issue for both employers and employees – it normally determines whether a worker will get benefits such as health insurance and 401(k), and whether the worker or employer will be responsible for paying the worker’s payroll taxes, not to mention overtime.

Background

Published on: August 29, 2014

Payroll Withholding Tax Basics for Both Employers and Employees

by Pauline M.K. Young

Requirements regarding withholding payroll taxes are something that every business owner should be familiar with, particularly businesses which handle their own payroll internally (as opposed to outsourcing to a payroll company). Employers are almost always required to withhold taxes from employees’ salaries, wages, and other compensation, such as commissions or bonuses.

While many people think of paying income taxes as what they do when they file tax returns by mid-April of each year, income taxes are actually considered a “pay as you go” tax. The tax returns at the end of the year then adjust the withholdings calculation depending on various other considerations such as deductions, marital status, and other income.

The employer withholds a certain amount of taxes from each paycheck which the employer is then required to turnover to the government.

There are both federal withholdings and New Jersey state withholdings.
Continue reading

Published on: May 30, 2014

New Jersey’s Anti Retaliation Laws

by Boris Peyner

New Jersey employees in the private sector and many in the public sector are known as at-will employees. This means that employees may be fired at any time, for any reason, or for no reason. Employees, however, cannot be fired for retaliatory reason. New Jersey has expansive laws that protect employees from their employers’ retaliatory conduct, including termination.

Employers can retaliate against employees in many different forms. Employers can retaliate against employees through harassment. For example, employers may try to reprimand, demote, or pass over for promotions employees who raise certain complaints or file certain claims. Another form of retaliation is firing an employee for engaging in certain activity.

However, not every termination or reprimand allows employees to have an actionable claim against employers. Instead, employees must engage in certain protected activity and the retaliatory conduct must be the motivation for the employees’ protected activity.

New Jersey’s Conscientious Employee Protection Act also known as New Jersey ‘s “Whistleblower” law makes it illegal for employers to retaliate against employees who object to or refuse to participate in an activity which the employees reasonably believe are illegal, criminal or fraudulent, or violates a clear mandate of public policy relating to public health, safety, welfare or the environment. Employers which retaliate against employees who object or refuse to participate in this type of activity can subject themselves to a lawsuit and significant consequences.
Continue reading

Published on: April 11, 2014

New Jersey’s Employment Laws Which Protect Against Sexual Harassment

by Boris Peyner

New Jersey’s employment laws protect employees from workplace sexual harassment. People accused of sexual harassment may be subject to individual liability under both civil and criminal laws. Employers may also be found liable for sexual harassment because of their employees’ actions.

Sexual harassment does not need to be sexual in nature. It can take at least two forms: (1) hostile work environment, and (2) “quid pro quo” sexual harassment. Hostile work environment sexual harassment is conduct that has been directed towards someone because of that person’s sex. For example, harassment that is based on stereotypes about women or men can be construed to be sexual harassment. Of course, harassment that is sexual in nature is sexual harassment. Therefore, inappropriate sexual propositions, jokes or advances can be construed sexual harassment and result in a civil lawsuit. This type of conduct is prohibited.

“Quid pro quo” sexual harassment is also prohibited. Quid pro quo sexual harassment is the demand by an employer, manager, or supervisor that terms and conditions of employment, such as raises, promotions, or simply keeping the employee’s job, in return for sexual favors. For example, if a boss requires an employee to have sex or enter into a romantic relationship to keep her job, get a promotion or avoid discipline, then the employer could be liable for quid pro quo sexual harassment.

Employees complaining about workplace sexual harassment are protected from retaliation. In fact, it is a violation of New Jersey’s employment laws for employers to retaliate against employees for their complaints about behavior that that employees reasonably believe is sexual harassment.

Simply, employees should not have to endure the stress or indignity of inappropriate sexual conduct in the workplace. However, not every type of workplace conduct based on gender is unlawful. Instead, to have an actionable claim of sexual harassment the conduct complained of must be serious enough or frequent enough to make a reasonable person believe that her working conditions are hostile or abusive.
Continue reading

Published on: April 9, 2014

Pregnancy Discrimination Under New Jersey’s Law Against Discrimination

by Pauline M.K. Young

New Jersey’s Law Against Discrimination (the “LAD”) covers a wide variety of activities and relationships, including employment relationships. It makes it unlawful to discriminate against an employee or potential employee on the basis of race, national origin, nationality, age, gender, sexual orientation, religion, and several other specified classifications.

In January of 2014, Governor Christie signed into law a bill (S2995) that both protects pregnant employees from discrimination and requires employers to provide pregnant employees with reasonable accommodations so that they can continue working. The Act applies both to women who are currently pregnant and those who have recently given birth. Therefore, if the pregnant woman, or woman who recently gave birth, requires accommodations in the form of, for instance, a modified schedule, additional breaks, or less strenuous work duties, as long as those accommodations are reasonable under the circumstances, the employer must allow them and cannot retaliate against the employee for needing, using, or asking for those accommodations.
Continue reading

Published on: March 17, 2014

Independent Contractor or Employee: How Do I Properly Classify My Workers?

by Boris Peyner

One of the most common areas in which business owners make a mistake is with the hiring and properly classifying new workers. Classifying a person as an independent contractor can have appealing benefits for an employer, but it can have detrimental tax consequences and other legal implications under both federal and New Jersey law.

For example, employers maybe tempted to classify workers as independent contractors because they would then not have to pay the employer portion of social security and Medicare taxes for their workers. Employers will also not be required to comply with the Fair Labor Standard Acts and New Jersey Wage and Hour Law, both of which provide for minimum wage and overtime pay requirements. Instead, a worker who is an independent contractor will be considered “self-employed,” and will be required to pay the taxes as well as their full social security and medicare income tax. This has the effect of transferring seven percent of the cost of worker from the employer to the worker.

Before determining if a worker is an independent contractor or an employee, it is essential to seek advice from an experienced New Jersey employment attorney. Proper classification of a worker must be made on a case-by-case basis. Factors have been set forth by the United States Appellate Court for the Third Circuit and the New Jersey Supreme Court, which must be reviewed in making the determination.

The New Jersey Supreme Court explained that there are at least twelve factors that should be considered in determining if a worker is an employee. First, and most important, a worker is more likely to be considered an employee if the employer controls the means and manner her performance. Second, a worker can be considered an employee if her occupation is one that an employer can be required to supervise. Third, a worker who has the skill set that matches what the employer normally seeks of its employees to perform a job can be considered an employee. Fourth, a worker who is provided with equipment and a workplace by the employer is more likely to be considered an employee. Fifth, a person who continuously provides service to an employer can be construed as an employee. Sixth, workers who are paid directly by the employer can be construed as an employee. Seventh, a person who is actually terminated by the employer is more likely to be construed as an employee. Eighth, a worker who is provided annual leave is probably an employee. Ninth, a worker who is an integral part of the business of the employer is more likely to be construed as an employee. Tenth, a person who accrues retirement benefits will normally be considered as an employee. Eleventh, if a worker’s social security tax is paid by the employer then, she will probably be construed as an employee. Finally, the intention of the parties can help establish if a relationship is that of an employee-employer.
Continue reading

Published on: March 10, 2014

Can I Sue My Employer If I Quit My Job?

by Boris Peyner

New Jersey employment law provides some of the strongest protections in the nation for New Jersey employees. A typical employment lawsuit involves an employee who has been fired in violation of some type of legal right. Employers, however, are now more sophisticated and do not always terminate their employees. Instead, employers now try to “force” their employees to quit by creating a hostile work environment.

Thus, a common question I am often asked is: “Can I still sue my employer who violated my rights if I quit?’ The answer will typically depend on a case-by-case analysis and the particular reasons behind the resignation. However, courts have now recognized a principal known as “constructive discharge.” Constructive discharge occurs when an employer make an employee’s job so miserable that the employee is forced to quit. Constructive discharge cases are often very difficult because the burden is on the employee to show that the work conditions were so unpleasant or difficult that a reasonable person would have felt compelled to quit, and the employer created them a hostile work environment for a prohibited reason, such as discrimination or retaliation against a “whistle blower.”

The New Jersey Supreme Court has explained that to sustain a claim for constructive discharge an employee must prove that the conduct complained of was so egregious that any reasonable person would be forced to resign rather than continue to endure it. For example, a typical case of constructive discharge can be sexual harassment by a supervisor. Another common example is when an employee makes a reasonable complaint that the employee believes another employee, typically one in a supervisor position, is violating the law. As a result, the employee that made the complaint begins to get unfavorable work assignments, is given poor reviews, and is otherwise subjected to a hostile work environment. If the employee quits as a result of the hostile work environment that employee could potentially sustain a claim for constructive discharge.

Employees who quit should not get discouraged by the fact that constructive discharge cases are difficult. In fact, New Jersey courts are quick to point out that decisions in constructive discharge cases are heavily fact-driven. It is therefore recommended to seek guidance from an experienced New Jersey employment attorney.
Continue reading

Published on: March 7, 2014

Pregnancy Now Protected Under the New Jersey Law Against Discrimination

by Maurice W. McLaughlin

On January 21, 2014, Governor Chris Christie signed legislation amending the New Jersey Law Against Discrimination to include pregnancy, childbirth, and related medical conditions among employees receiving protection against discrimination. The law is effective immediately.

Introduced as bill in September 2013 to combat discrimination against pregnant women and women with medical needs after childbirth, the Act requires employers to make reasonable accommodations to pregnant women and those recovering from childbirth. Accommodations can include restroom breaks, breaks for increased water intake, periodic rest, help with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or less hazardous work. The bill referred to reports that women who requested an accommodation in the workplace to help them maintain a healthy pregnancy or who needed a reasonable accommodation as they recovered from childbirth were being removed from their positions, placed on unpaid leave, or fired.

In urging the New Jersey Senate to pass the bill, the American Civil Liberties Union of New Jersey (ACLU)identified some examples of women who were denied reasonable accommodations because of their pregnancy. Before the amendment of the New Jersey Law Against Discrimination, those employer actions were legal. Examples include a pregnant security worker who was denied a stool to sit on at her job, a pregnant cashier who was not allowed to keep a water bottle at her workstation and collapsed at her register, and a pregnant line cook who was denied additional restroom breaks.

The ACLU Public Policy Director also cited a New Jersey Supreme Court case that held that it was legal for a casino to fire a pregnant worker whose doctor instructed her not to return to work after discovering a serious problem with one of the twins that she was carrying. Said the Director, “What does it say about our state’s values that our laws ask a woman to make the choice between doing what’s needed to protect her pregnancy, and keeping her job?”

Employers are not to apply workplace accommodations “in a manner less favorable than accommodations or leave provided to other employees not affected by pregnancy but similar in their ability or inability to work.” Further, the Act does not intend to impact the amount of employees’ rights to paid or unpaid leave under the law.
Continue reading