Articles Tagged with New Jersey civil service attorneys

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New Jersey public employees have multiple venues to litigate employment claims against their government employers.

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New Jersey government employees can sue in New Jersey state court, beginning with the Superior Court of New Jersey which sits in each county, for violation of state laws such as the New Jersey Conscientious Employee Protection Act, the New Jersey Civil Rights Act and the New Jersey Law Against Discrimination, and then the state appellate courts.  For employment-related civil rights claims or violations of Federal laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act or the Fair Labor Standards Act, employees can file suit in the Federal courts beginning with the United States District Court for the District of New Jersey which sits in Camden, Trenton and Newark, with appeals heard by the United Staes Third Circuit Court of Appeals and then the United States Supreme Court.  A civil service employee who alleges that she was disciplined in violation of civil service laws can appeal to the New Jersey Civil Service Commission, with appeals from Commission decisions being heard by the Appellate Division of the Superior Court of New Jersey.  Tenured teachers and other education employees can appeal to the New Jersey Department of Education.  Public employees can utilize the grievance procedure in the contract for allegations of violations of the contract for discipline, pay violations and other related matters.  Grievance procedures in many union contracts often provide for binding arbitration with the Public Employment Relations Commission (“PERC”). PERC will also hear allegations of unfair labor practices, binding arbitration of certain contract negotiation impasses, scope of negotiations disputes, bargaining unit disputes, and certain appeals of discipline by law enforcement officers who are not employed in civil service jurisdictions.

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Progressive discipline is a bedrock principle in New Jersey civil service law.  However, while flexible, progressive discipline has its limits.  The New Jersey Supreme Court recently issued a precedential employment law decision examining when progressive discipline allows forcapt-andrew-209x300 termination of a law enforcement officer’s employment for even a first offense in the case of In the Matter of Brian Ambroise.

Background

The case involved an appeal from an earlier decision by the Appellate Division of the Superior Court of New Jersey.  I wrote about it here, so I will only briefly outline the facts of the case and how it got to the Supreme Court.

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In New Jersey Civil Service, hiring and promotion are done in accordance with the applicant’s (or “eligible’s”) rank on a list.  There are specific reasons why an applicant may be removed from a Civil Service list.  However, sometimes removal is done because of favoritism,sgt-johnny-jpeg-232x300 nepotism, politics, discrimination, whistleblower retaliation, cronyism, or outright bribery.  Since the entire purpose of the New Jersey Civil Service System is to ensure that hiring is based on merit, there is an appeal process for applicants who believe that their name was improperly removed from a Civil Service hiring or promotion list.

Allowed Reasons for Removal from a Civil Service Eligible List

An applicant may be removed from a list because she:

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The Appellate Division of New Jersey’s Superior Court recently examined the use of the “Rule of Three” in New Jersey civil service list bypass appeals in the case of In the Matter of Antonio Salters, Fire Fighter, Township of Hillside.

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Salters applied to become a firefighter for the Township of Hillside, New Jersey.  He passed the examination and ranked fourth out of forty eligible candidates on an open competitive employment list.  Thirteen candidates on the list were ultimately hired, but the Township exercised the “Rule of Three” to skip Salter on the list.  Salter appealed his bypass to the New Jersey Civil Service Commission.

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Under New Jersey employment law, criminal charges can have a significant impact on government employment beyond the penalties carried by the criminal charges themselves. paterson-pd-andrew-300x211 These effects impact both civil service and non-civil service employees.

Suspensions While Criminal Charges Are Pending

First, a public employee may be suspended while criminal charges are pending.

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Appellate Division Demonstrates Why It Makes Sense to Pursue Civil Service Disciplinary Appeals.

New Jersey civil service employees have protections which other employees do not.  The heart of this is the opportunity to appeal major discipline imposed by their employers.  A recentcop New Jersey appellate decision in the case of In the Matter of Malikah Spencer, Essex County, Department of Corrections, demonstrates that this process gives New Jersey civil service employees a fair hearing in these appeals, and demonstrates why civil service employees should pursue appeals of employer imposed major discipline.

Background

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New Jersey civil service law provides significant protection for employees serving in civil service jurisdictions which other employees, even other government employees who are not inus-supreme-court-300x200 the civil service system, do not enjoy.

Layoffs.  A layoff is the cessation of a permanent employee’s employment for economic reasons or efficiency, triggering the rights and procedures provided by New Jersey civil service law to those affected by layoffs.  Demotions for reasons of economy, efficiency or related reasons are also treated as layoffs. Demotions in the form of reduction in hours are also layoffs.  A civil service employee is entitled to all applicable civil service due process protections if her position does not meet the definition of a layoff. Layoffs cannot be used as discipline. Whether her position is abolished or not, if she is affected by a layoff the Civil Service System gives her significant protections if she is subjected to any employment action for other than economy or efficiency outside a layoff plan approved by the New Jersey Civil Service Commission.

Pre-Layoff Actions, Alternatives.  An employer must try to avoid layoffs, and if that is not possible then to lessen the extent and impact by using pre-layoff actions. Before instituting layoffs, voluntary or involuntary, the employer must consult with the union for the affected employees.  Examples of voluntary alternatives include leaves of absence without pay while keeping seniority; furloughs; reduction of work hours; job sharing; and providing optional temporary demotional titles.

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How a New Jersey Civil Service employee’s separation from service is characterized, either “in good standing” or “not in good standing,” has significant consequences, particularly on the employee’s ability to obtain future government employment, and may even effect her employment in the private sector.  Moreover, if the employee iscouncil-of-state-535721__340-300x103 found to have abandoned her position she may be involuntarily terminated.  Thus, the right to appeal these characterizations is important.

When a Resignation is Considered to be in Good Standing

Obviously, civil service employees want their separations to be considered in good standing, which will allow them to be reemployed.  This will also allow them to answer that they resigned in good standing when asked at job interviews even for private sector jobs.  For a resignation to be considered “in good standing” the requirements under New Jersey civil service law are that the employee actually was in good standing when she resigned and that she gave her employer at least 14 days notice, either verbally or in writing (the employer may consent to shorter notice which would allow the resignation to be in good standing despite a shorter notice period).  The resignation is considered accepted when the notice is received by the employer. The employer may allow an employee to rescind her resignation prior to the employee’s last day.

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New Jersey disability laws apply to civil service employment decisions such as hiring and promotion.  However, applicants with physical or psychological conditions must still be able to perform the essential functions of their prospective jobs with reasonable accommodation.  Fortunately, New Jersey civil service law provides a process tocomputer-300x200 protect the rights of applicants while ensuring that they are able to provide the vital public services of their prospective positions.

The Hiring and Promotion Process

The Civil Service Commission’s Regulations provide for disqualification from employment if an applicant:

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New Jersey Civil Service law gives significant protections to government employees in jurisdictions which have adopted civil service. It provides an appeals process that private sector employees and government employees inimagesCAWQ89PS jurisdictions which have not adopted civil service do not enjoy.  Most government employment decisions which do not involve minor discipline can be appealed to the New Jersey Civil Service Commission.  Beyond that, decisions of the Civil Service Commission may be appealed to New Jersey’s appellate courts.

The Appeal Process

New Jersey Civil Service Commission decisions are considered “final agency actions”  which may be appealed directly to the Appellate Division of the Superior Court of New Jersey “as of right.” This means that the Appellate Division has no discretion in whether to hear the case or not – it must hear the appeal.  Appeals to the Appellate Division from final decisions of the Civil Service Commission must be filed in writing within 45 days after the decision.

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