Articles Posted in Labor and Employment

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New Jersey law imposes certain requirements on the behavior of employees, whether through the common law or contract.  New Jersey employment law and business law will enforce restrictive covenants, including non-compete agreements, if they meet certain requirements.  However, the tests for enforceability are different for restrictive covenants contained in employment agreements and those  which are part ofstock-photo-4786200-handshake-at-the-business-meeting the sale of a business.  Likewise, whether or not there are restrictive covenants, New Jersey employment law imposes on employees a duty of loyalty to their employers.  The Appellate Division recently examined these requirements.

Background

Robert Ryerson was a registered investment advisor (RIA), providing financial planning and investment services until the National Association of Securities Dealers (NASD) found him guilty of misconduct in 2006 by sharing commissions with non-NASD members and intentionally misleading his employer.  Ryerson owned and operated NCP, a small financial advisory firm.  However, the NASD’s revocation of his license meant he could no longer operate NCP.

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New Jersey employment law provides many protections to employees.  One of the strongest of these is the tenure rights afforded to public school teachers.  Even with such strong protections, for many reasons employees sometimes decide to forgo these rights.  The Appellate Division of the Superior Court of New Jersey recently addressed a question about what notice is required when a full-time teacher voluntarily moves to a part-time position before she will be deemed to have waived her tenure rights to aback-to-school-1576791__340-300x200 full-time position in the case of Parsells v. Board of Education of the Borough of Somerville.

Background

Catherine Parsells was a tenured teacher with the Somerville, New Jersey, Board of Education.  She began working there in 2010.  In May 2016, a part-time teaching position with benefits became available.  She applied so that she could spend more time with her young son, and her application was approved.  Thereafter, Parsells went out on maternity leave on February 2, 2017.  She advised the superintendent that she intended to return to the part-time job the following year; he advised that she could, but the job would no longer have benefits, and that if she wanted befits she would have to work in a full-time position.  She continued part-time and later declined a new full-time position for family reasons.  She extended her maternity leave to include the entire 2017-2018 school year.

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New Jersey whistleblower protection laws protect employees who object to or try to prevent illegal conduct by their employers, be they private sector employers or state or local government employers.  However, while New Jersey employment law gives strong protection to employees, a recent published appellate decision in the case of McVey v. Atlanticare Medical Systems Incorporated makes clear that neither the New Jersey nor Federal constitutions provide free speech protections to employees of privatecourthouse-1223280__340-300x200 sector employers, particularly when that speech violates a company policy or is racist.

Background

Heather McVey was an employee of Atlanticare Medical Systems Incorporated, a private employer.  She was hired as a nurse in 2005.  She was promoted several times, eventually becoming Corporate Director of Customer Service.  She was an at will employee.  She had a Facebook page under a fictitious name, “Jayne Heather,” but used her actual photo for her profile, and listed her employment as “Corporate Director at Atlanticare Regional Medical Center.”

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In a recent New Jersey employment law decision, the Appellate Division of New Jersey’s Superior Court rejected a board of education’s argument that it had substantially complied with the requirements for giving notice to untenured employees whose employment contract was not going to be renewed for the following school year.

Background

In that case, Monika Vakulchik v. Board of Education of the Borough of Dunellen, Vakulchik, an untenured speech pathologist who worked for the Board since 2016,teacher-300x224 received an evaluation on May 1, 2020 with an average score of 3.33, which was in line with her scores over the previous years.  It was signed by her supervisor, the director of special services, and recommended her for non-renewal, despite leaving the section listing the areas in which she could improver her work blank.  She met with her supervisor and union representative, and then on May 3, 2020, emailed the superintendent requesting a statement of reasons for the non-renewal.  The Board voted on May 5, 2020 to accept the superintendent’s recommendations for renewal, which did not include Vakulchik.

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A recent New Jersey employment law decision examined the procedures for reopening a Civil Service disciplinary appeal because of newly discovered evidence.

The Newsom Case

In the case of In the Matter of Kevin Newsom, New Jersey State Prison, Kevin Newsom, a civil service employee, was terminated as a corrections sergeant by the Newdc-court-appeals-district-columbia-building-abraham-lincoln-statue-74985350 Jersey State Prison.

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New Jersey Civil Service law give a hiring preference to “veterans” which ranks them higher on eligible lists if they otherwise meet the eligibility requirements.  This is known as the Civil Service veterans preference.

However, not everyone who is considered a “veteran” by the Federal Government, military, or Veterans Administration is eligible for the civil service veterans preference.No photo description available.  Eligible veterans include only those who received a discharge not characterized as dishonorable and who served at least 90 days in World War I and World War II, or who served at least 14 days in the operations area in the following conflicts: the Korean War; the Vietnam War; the Lebanon Crisis of 1958; the Lebanon peacekeeping mission in the 1980s; the Grenada peacekeeping mission in 1983; the Panama peacekeeping mission; Operation Desert Shield/Desert Storm; Operation Northern Watch and Operation Southern Watch; Operation Restore Hope in Somalia; Operations Joint Endeavor and Joint Guard in Bosnia; Operation Uphold Democracy in Haiti (if the veteran received the Armed Forces Expeditionary Medal for their Haitian service); Operation Enduring Freedom; and Operation Iraqi Freedom. “Veterans” also include service members receiving injuries in those operations regardless of the length of their service in them.

Disabled veterans” are “veterans” of those conflicts who receive compensation of at least ten percent for a service-connected disability arising out of those defined operations.  Certain spouses and parents are also eligible if the veteran or disabled veteran does not or cannot use the preference.

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The bedrock principle of New Jersey Civil Service law is that merit and fitness should be the only factor considered in employment decisions, and discrimination, nepotism, cronyism, politics and bribery should be eliminated in public sector employment.  The gateway to this system is the New Jersey Civil Service examination process, which ensures that hiring and promotion are based on merit, not other impermissible considerations. Indeed, the New Jersey Constitution requires that whenevernational-gallery-of-art-1380105-m-300x248 possible, merit and fitness for hiring and promotions be determined by examination.  The New Jersey Civil Service Act and Regulations implement this constitutional principle.  Therefore, the principal means for determining merit and fitness for hiring and promotion of classified, career, permanent civil service employees is the New Jersey Civil Service examination process, which is administered by the New Jersey Civil Service Commission.

Obviously, then, civil service examinations are extremely important to applicants for hiring and promotion.  But the human condition is that mistakes occur, and the New Jersey Civil Service system is administered by humans, and so mistakes are made. Therefore there is a process for appeals.  Our New Jersey civil service attorneys represent state and local government employees in all aspects of New Jersey employment law, including civil service appeals.

Below is an overview of the New Jersey Civil Service examination system, and how candidates for hiring or promotion can appeal when a mistake is made.

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New Jersey’s Civil Service System was enacted to keep politics, discrimination, favoritism out of employment decisions.  Therefore, civil service employees may only be disciplined for “just cause.”  The New Jersey and Federal Constitutions require that before any  government body may take action against anyone they must receive due process, which is notice, the right to be heard, and fundamental fairness.  Since government employers, even acting in their role as employers, are still the government, tenure-thumb-170x110-48818 employees must receive due process before they can be disciplined.  The New Jersey Civil Service Act and the Civil Service Commission’s regulations implementing it provide that due process to employees.

Written Notice and the Opportunity for a Hearing 

When a government employer wants to discipline a civil service a permanent, career service employee or an employee in a working test period, it must give the employee written notice of the charges and specifications alleged against her (specifications are a statement of the facts underlying the charges) and the opportunity for a hearing at the employer level by the governmental jurisdiction or its designee.  The employer must hold the hearing within 30 days of the notice unless the employee waives her right it.

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Background.   New Jersey Civil Service exists remove favoritism, nepotism, politics and other improper considerations from employment decisions.  This includes Civil Service discipline.  Because Civil Service employers are governmental entities, due process and fundamental fairness protections govern discipline.supreme-administrative-court-3565618_960_720-300x200

As far back as 1961, the Appellate Division gave a good summary of Civil Service disciplinary procedures.

Disciplinary proceedings against a civil servant are not only an attempt to determine the status of a particular individual; they are a statutorily authorized action to redress a wrong committed against the people of the State by one in whom the public trust has been officially reposed. The proceedings are therefore penal, or at least quasi-penal, in nature, and deeply embedded constructional principles, supported by fundamental notions of fairness, dictate that in such an action the statute or regulation defining the alleged violation be construed to comport with the fair meaning of the language used. The theme of fairness threads its way through the notice, hearing, and right of appeal provisions of our Civil Service Act, and finds particular pertinence in those sections requiring that the causes for removal constituting ‘just cause’ be enumerated with specificity. The governing consideration, that one be fairly and completely advised of the nature of the charges against him, loses all effectiveness if it is not reinforced by a requirement that the proscribed activities and contingencies warranting disciplinary proceedings be set forth with reasonable particularity and construed accordingly.

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Under the New Jersey public employment law and Title 18A of New Jersey statute, which governs New Jersey employment law for public school and public college employees, if an employee is actually performing the work of a particular position, even though they are designated in another, they must receive the compensation for the job they are working in.  In other words, public employers can’t underpay employeesbully-3233568__340-300x272 by having them fill a higher or more difficult position while paying them for a lower or less difficult one.  The Appellate Division recently examined these statutes.

The De Facto Employee Laws

Title 18A provides that:

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