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How a New Jersey public employment position is classified can have enormous effects on an employee’s rights.  This blog describes some of the details about how the New Jersey Civil Service Commission classifies New Jersey Civil Service jobs, and what the consequences of thoseNJ_State_House-300x200 classifications are.

 
Some terms

Under New Jersey Civil Service Law, jobs are classified by “titles.”  Titles are based on duties, responsibilities, and qualifications.  “Career service” employees serve in “classified” titles, “unclassified employees” serve in “unclassified” titles.

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In an important decision interpreting New Jersey employment law, the Supreme Court ruled in the case of Melnyk versus the Delsea Regional High School District that analyzing whether a position is eligible for tenure protection depends on the statutory requirements, not teacher-300x200on how the employer chooses to label it.

Paula Melnyk was a long-time, tenured, full-time, certified, special education and English teacher during the day for the Board of Education of the Delsea Regional High School District, since 1991.  From 2002 through 2015, except for a break in the 2009-2010 school year, she also taught at in the Board’s BookBinders Program.  This was an evening program for students who had been removed from the traditional daytime classroom for behavioral issues, or who otherwise could not participate in the regular school program.  State law required the Board of Education to provide this service, whether through its own staff and facilities, or by agreement through another district.  The Board chose to provide the services itself.

The Board characterized Melnyk’s work in this program as “extra-curricular,” and therefore not eligible for tenure.  Had it been a position eligible for tenure, Melnyk would have earned it, since even with the break in 2009-2010, she had more than the three years and a day then required to earn tenure (that time frame was increased in 2012 by the TEACHNJ Act, but it was not applicable when Melnyk would have earned tenure).

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Discipline is a major component of New Jersey’s Civil Service system.  Discipline under New Jersey Civil Service law is either “major” or “minor.”

Major Discipline

The main procedural consequence of the difference major discipline and minor discipline is that major discipline can be appealed to the New Jersey Civil Service Commission, while minor discipline can only be challenged in the Superior Court of New Jersey.  Major discipline is civil-servcie-1800s-300x165defined as a suspension or fine of more than five days.  Major discipline includes removal, disciplinary demotion, and suspension or fine for more than five working days.  The touchstone for all civil service disciplinary procedures, however, is that “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 [discipline, including] removal constituting ‘just cause’ be enumerated with specificity.”

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No discussion of New Jersey employment law would be complete without New Jersey’s Civil Service System, which governs all state government employees, and employees of twenty of New Jersey’s twenty-one counties, and the majority of its municipalities.

As far back as 1961, the Appellate Dnew-york-county-courthouse-1540991328RMS-300x200ivision gave a cogent summary of the disciplinary procedures in New Jersey’s Civil Service Act, which is worth quoting ver batim.

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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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.

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Hello, my name is Pauline Young, I am one of the partners here at the law firm of McLaughlin & Nardi and I am here today to discuss solid waste transportation also known as A-901 licensing.

Waste haulers are often surprised to learn of the extent of regulation in the industry in New Jersey.  This is because in most states, waste transporters are not required to obtain a license in order to operate their business. New York City is one of the exceptions to that as well as New Jersey, but in most states, including Pennsylvania and Connecticut there is little to no licensing or registration requirements at all for solid waste haulers.  However, because of New Jersey’s unfortunate history of illegal dumping and related criminal activity, the State has imposed a complex regulatory system to address these issues.

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There are many people who complain that Civil Service is a terrible hindrance to efficient government.  Managers complain that Civil civil-caseService 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:

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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

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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.

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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.  Tschool-bus-1-300x200he 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.

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