At approximately 10:30 PM on July 9, 2020, The State Attorney General sought permission to file a motion seeking  emergent relief to dissolve the stay to implement Directives 2020-5 & 2020-6 entered by the Appellate Division earlier that day. The stay as currently entered delays the Attorney General’s ability to implement Directives 2020-5 & 2020-6 until a full hearing takes place concerning the legality of the Directives themselves.  Oral argument on the issue is set for October 15, 2020 and we expect the Supreme Court for the State of New Jersey to rule on the Attorney General’s application in the most immediate future.  When we receive a ruling we will report it to our readers.

Today, the New Jersey Superior Court Appellate Division Issued a Temporary Stay on the release of public disclosure of the identities of Law Enforcement Officer who have been sanctioned for “serious disciplinary violations”, defined as
“termination of employment, reduction in rank or grade, and/or suspension greater than five days”.  In issuing the Stay a briefing schedule was established culminating in oral argument on the date of October 15, 2020.  We will continue to keep you posted on this matter as it progresses and a link to the complete copy of the order is attached below.

ORDER (GRANTED AND OTHER)

 

As reported by NJ.com, a plan offered by Governor Phil Murphy for New Jersey’s state government to make up for massive losses in tax revenue with up to $14 billion in borrowing passed the State Assembly yesterday, but still lacks support from State Senate President Stephen Sweeney. The measure cleared the lower house in a 51-28 vote along party lines.

The State Treasurer has lowered by $10 billion how much tax revenue the State may collect through next summer. The coronavirus pandemic crisis and business closures ordered to slow its spread have spurred an economic crisis that’s slammed state tax collections, including personal income taxes, sales taxes, and taxes on corporate income. Murphy says the State would have to make draconian cuts and “historic” layoffs if the State Legislature does not agree to its borrowing plan and the federal government doesn’t come through with more aid. Under the worst case scenario, Governor Murphy pegs the number of public worker layoffs at 200,000.

“It’s a huge step forward,” Murphy said of the Assembly vote. “Bonding is not something we all wake up reflexively wanting to do. But the alternative is devastation for our front-line workers, the very people we need at their positions and posts…health care workers to firefighters, police, educators, EMS and everybody in between. That’s a big step in the right direction.”

The administration is seeking authorization to issue $5 billion in general obligation bonds in the public or private markets, and to have the ability to borrow up to $9 billion from the Federal Reserve.  However, officials say they do not anticipate borrowing the full amount. The bill, which has not been taken up by the State Senate, authorizes the Governor to take out the $9 billion from the federal reserve for a term of up to three years for the State directly and also on behalf of local governments that can’t access the lending program on their own. The State would pay the Federal Reserve 2.8 percent in interest, based on its credit rating and the Fed’s pricing grid. The bill also permits the administration to refinance the general obligation bonds on the public or private markets before they come due.

Please continue to check this blog periodically regarding updates to this bill.  As we all know, the economic fallout from the coronavirus pandemic may have a drastic impact upon all New Jersey public employees, to include New Jersey Public Safety Officers.  As such, it is imperative to ensure all New Jersey Law Enforcement Officer positions and their accompanying rights are adequately protected during these uncertain times.

The COVID-19 pandemic has taken hold of our lives and has undoubtedly had an impact on First Responders from both a personal and professional standpoint.  Over the past several weeks, our firm’s attorneys have had the unique perspective of witnessing individual administrators from across the State of New Jersey exhibit fantastic leadership qualities, while other administrators have again proven to be the poor leaders that we always knew that they were. Unfortunately, the poor leaders panic in a state of crisis and believe that rules, regulations, statutory law and bargained for agreements no longer apply or have to be followed. When such situations occur, First Responders often bear witness and are victimized by administrations taking unwanted and unneeded liberties in operating their organizations. Such situations have resulted in blatant overt and attempted covert violations of collective negotiations agreements.  Suffice it to say, it is the poor leaders that believe that they can take what they want, act how they want, and make decisions unilaterally without consulting with the men and women that they lead.

However, on the other hand, we have been fortunate to witness certain outstanding leaders recognize and predict potential problems and issues and in turn, reach out to the men and women under their charge in an effort to resolve the problems together and tackle them head on for the betterment of all involved.  When administrators have taken the time to consult with Union Leadership, certain Locals have agreed to relax terms and conditions within their bargaining agreements in an effort to ensure operational efficiency and the protections of the First Responders and the public at large.  We are of firm opinion that agreed to temporary contractual concessions are not a sign of a Local’s weakness, but instead a sign of strength and the fostering of strong labor relations that are needed to accomplish the departmental mission.

Needless to say, because of such poor administrative leadership, our firm has found ourselves filing more grievances and unfair practice charges than we have had to file over the previous six (6) months prior to the outbreak of the pandemic. That being the case, we believe it is important to inform our members that, much to the chagrin of administration, the terms and conditions of your collective negotiations agreement do not fall by the wayside during a government declared state of emergency.

In reviewing this issue in detail, it must be noted that there is a dearth of case law on the specific subject of an administration’s engagement in illegal behavior by violating the terms and conditions of a collective negotiations agreement during a declared state of emergency. Guidance, however, can be taken from the case Robbinsville Twp. Bd. of Educ. v. Washington Twp. Educ. Ass’n, 227 N.J. 192 (2016). In Robbinsville, the Supreme Court held that the board of education’s unilateral alteration of a collectively negotiated agreement based on a declared financial crisis was illegal and constituted an unfair labor practice. In rendering their decision, the Court used very strong language and stated that managerial prerogative did not allow a public employer to “throw a collectively negotiated agreement out the window” during an economic crisis.

The Supreme Court went on to further state that “allowing a claimed need for management prerogative to prevail in tight budgetary times in order for municipal government policy to be properly determined would eviscerate the durability of collective negotiation agreements. The Legislature and the Court have, time and again, emphasized the value of collective negotiated agreements in society.”

In addition to the foregoing, NJPERC just issued an order on May 26, 2020, granting interim relief and restraining the Passaic County Sheriff from violating PBA #286 and #197’s collective negotiations agreement when he recalled both Union Presidents from full union release.  In the decision bearing Docket No.’s IR-2020-23, CO-2020-263 and CO-2020-264 the PERC Hearing Officer rejected the County’s arguments that managerial prerogative provided them with a sound basis to recall the two officer’s which eviscerated the terms of the two Union Contracts.  Instead, the Sheriff was restrained from engaging in his unlawful actions and the two President’s were returned to full release.

Based on the foregoing, protect the terms and conditions of employment that your Local has negotiated into your collective bargaining agreements.  If management wants to eviscerate your agreement by “taking without asking,” we know that your collective bargaining training will “kick in” and appropriate action will be taken to protect your rights.  The sooner management recognizes and respects your collective negotiations agreement, the sooner that they will learn the reasonableness and willingness of our Locals in ensuring that the mission and the protection of our citizens is always our top priority

As reported by NJ.com, legislation to automatically pay federal death benefits to first responders who die of the coronavirus unanimously passed the United States Senate yesterday.  The measure removes the requirement that families of police officers, firefighters and emergency medical technicians  have to prove that the first responder was infected while on the job as long as the person was diagnosed with COVID-19 within 45 days of his or her last shift.

“Our firefighters, police officers, EMTs, and other emergency services personnel risk their lives to keep us safe, and face significantly increased hazards during this pandemic,” said the bill’s Chief Democratic sponsor, U.S. Senator Cory Booker. “A staggering number of public safety officers have already lost their lives to COVID-19 and we must make sure that their families are supported when they face unimaginable loss-and that’s exactly what this bill does.” The bill attracted bipartisan support, with U.S. Senator Chuck Grassley of Iowa as the lead Republican sponsor.

Under the legislation, death benefits would be paid if a first responder is diagnosed with the coronavirus within 45 days of his or her last shift. The benefits would go to public employees and volunteers, though lawmakers said they hoped to expand the program to also include those working for private companies. Similar legislation is being sponsored in the U.S. House by Representative Bill Pascrell Jr., D-9th Dist., and a benefits provision was included in the $3 trillion coronavirus stimulus bill expected to pass the chamber on Friday. Under the Public Safety Officers Benefits Program, the federal government pays death benefits to survivors of first responders who die in the line of duty or due to a work-related event. The Justice Department program also benefits to those permanently disabled due to their work.

Unfortunately, as we all know, New Jersey Public Safety Officers have been hit particularly hard by the COVID-19 pandemic.  Specifically, about twenty (20) first responders in New Jersey have died due to COVID-19, although this number may be under reported.  This bill provides a step in the right direction for all New Jersey Public Safety Officers in order to protect and provide for their families in the unfathomable event of a death due to COVID-19. Please continue to check this blog periodically to ascertain updates regarding this bill and its progress going forward.  Stay Safe!

As many of you are aware by now, State and Local Governments across the country have split $150 billion in Federal aid under a provision of the Coronavirus Aid Relief and Economic Security (CARES) Act.  The division of these dollars, made available through the new Coronavirus Relief Fund, is allocated to each State and governmental entity based on a specific mathematical formula that was created and made part and parcel to the legislation itself.  It is important to note that Governmental use of CARES Act money is restricted to:

  1. “Necessary Expenditures” incurred as a result of the COVID-19 pandemic;
  2. The expenditures must not have been accounted for in the budget most recently approved as of the enactment of the CARES Act (March 27); and
  3. The necessary expenditures must be incurred between March and December of 2020.

Distribution of this money is based on population alone and each state is guaranteed at least $1.25 billion even if its population share would indicate a lesser amount.  However, local governmental entities (in New Jersey County Governments) with populations of 500,000 or more were also eligible to apply for and in fact did receive aid directly from the Federal Government.  When this aid was allocated to some of our Counties, those that qualified based on population were permitted to receive 45% of the amount allocated for their population, while the State of New Jersey retained the other 55% as it also “serves” that County’s particular population.

However, in addition to the foregoing, for Counties that have a population that is less than 500,000 the State of New Jersey has the ability to retain 100% of their share of the federal aid.  Based on the foregoing and as of today, the Counties within the State of New Jersey that have less than 500,000 residents have not received direct funding of their “share” of the CARES Act money and a congressional delegation led by Congresswoman Mickie Sherill has been pressuring Governor Murphy to release a proportional share of CARES Act funds to each County with a  population of less than 500,000 as a matter of fairness.

At this point in time many of you are probably asking yourselves “What does County and State CARES Act funding have to do with me and my employment as a First Responder?”  The reason that we bring this to your attention is to make you aware that many of the Counties that have already received their portion of the CARES Act aid (Bergen, Camden, Essex, Hudson, Middlesex, Monmouth, Ocean, Passaic and Union) currently have plenty of funds available to provide First Responders with “Hazard Pay” that the Federal Government has deemed to be a “Necessary Expenditure” under the CARES Act.  Furthermore, should Governor Murphy release CARES Act funds for the less populated Counties they too will have adequate money available for the authorization of Hazard Pay.

To determine if the CARES Act funding can be used for “Hazard Pay” one needs to look to the guidance that was published by the Federal Department of the Treasury on April 22nd, 2020.  Within the body of the publication it states that “…funds that a governmental agency receives from the CARES Act may be used for “Payroll expenses for public safety, public health, health care, human services, and similar employees whose services are substantially dedicated to mitigating or responding to the COVID19 public health emergency”.  However in an effort to provide definitive guidance on this statement, additional guidance was issued on May 4th, 2020 which state:

Question:

“How does a government determine whether payroll expenses for a given employee satisfy the “substantially dedicated” condition?

Answer:

The Fund is designed to provide ready funding to address unforeseen financial needs and risks created by the COVID-19 public health emergency. For this reason, and as a matter of administrative convenience in light of the emergency nature of this program, a State, territorial, local, or Tribal government may presume that payroll costs for public health and public safety employees are payments for services substantially dedicated to mitigating or responding to the COVID-19 public health emergency, unless the chief executive (or equivalent) of the relevant government determines that specific circumstances indicate otherwise.

In addition to the foregoing, the April 22nd, 2020 publication provides a non-exhaustive list of examples of costs that would not be eligible expenditures of payments under the CARES Act. These expenditure examples are:

  1. Expenses for the State share of Medicaid.
  2. Damages covered by insurance.
  3. Payroll or benefits expenses for employees whose work duties are not substantially dedicated to mitigating or responding to the COVID-19 public health emergency.
  4. Expenses that have been or will be reimbursed under any federal program, such as the reimbursement by the federal government pursuant to the CARES Act of contributions by States to State unemployment funds.
  5. Reimbursement to donors for donated items or services.
  6. Workforce bonuses other than hazard pay or overtime.
  7. Severance pay.
  8. Legal settlements.

Finally, in an effort to define “hazard pay” the May 4th, 2020 Department of the Treasury FAQ’s provide a question and answer regarding the same.  Within the document it states:

Question:

Is there a specific definition of “hazard pay”?

Answer:

Hazard Pay means additional pay for performing hazardous duty or work involving physical hardship, in each case that is related to COVID-19.

Based on the foregoing, if there was ever a doubt as to whether Hazard Pay was an authorized expenditure under the CARES Act, the Federal Government has definitively answered this question in the affirmative.  Therefore, if your County has already received its share of the CARES Act funding, the money is there and your Local should be seeking the hazard pay that you rightfully deserve.  If you work and live within one of New Jersey’s smaller counties, you too should be seeking compensation for Hazard Pay and hopefully Federal CARES Act funding will be on the way.

On account of the COVID-19 outbreak, many employers are requiring employees submit to temperature checks prior to entering the place of employment or their specific job.  For New Jersey Public Safety Officers, this is no different. To this end, the State of New Jersey and many counties, towns, and municipalities are requiring officers submit to temperature checks prior to entering places of employment such as correctional facilities and station houses and/or reporting to their specific assignments and/or posts. Recently, we had a number of unions inquire as to whether officers should be compensated for the time spent submitting to such temperature checks and waiting in line for the same.

Although it is a fact-sensitive determination, New Jersey Public Safety Officers may be compensated for submitting to temperature checks under certain circumstances. Specifically, the Fair Labor Standards Act and the Portal-to-Portal Act of 1947 provide potential avenues to obtain the same. Under these laws, the operative question will be whether the temperature check is an “integral and indispensable” part of an officer’s job. As such, questions such as whether the temperature check is mandatory prior to an officer starting his/her shift and whether the same is conducted on the employer’s premises become highly relevant.  If it can be established that the temperature check serves as a “barrier” of sorts for an officer to engage in their job, the time spent submitting to the temperature checks and waiting in line is likely compensable.

During these uncertain times and the dangers they are facing on a daily basis, it is imperative the rights of all New Jersey Public Safety Officers are protected and they are receiving the compensation to which they are due and owed. As such, please feel free to contact us to discuss this issue, or any other issue, in further detail.  Thank you for all that you are doing and stay safe.

Yesterday the New Jersey Public Employment Relations Commission (PERC) ruled that the State of New Jersey engaged in unfair labor practices by unilaterally discontinuing the payment of salary guide step increments upon the expiration of the New Jersey Law Enforcement Supervisors Association’s (NJLESA) and the New Jersey Superior Officers’ Associations (NJSOA) contracts that ran from July 1, 2011 through June 30, 2015. (Please see PERC Decision Numbers CO-2016-107 and CO-2016-118 respectively).  In rendering their decision PERC adopted the 107 page the Hearing Examiner’s recommended decision in almost its entirety.

PERC stated in the decision that the Commission and the New Jersey Courts have consistently held that changes in negotiable terms and conditions of employment must be addressed through the collective negotiations process because unilateral action is destabilizing to the employment relationship and contrary to the principles of New Jersey Employer Employee Relations Act.  However, more importantly, PERC found the Hearing Examiner’s decision to be Consistent with the New Jersey Superior Court Appellate Division’s decision and the New Jersey Supreme Court’s ruling in the case entitled In the Matter of Atlantic County

PERC stated in its ruling that the “dynamic status quo” had to be maintained in this instance due to the fact that the State of New Jersey had never before frozen or discontinued regular increments under the applicable contract language during the period when a prior contract expired and a successor agreement was negotiated. Thus the status quo included a payment system by which increments were regularly paid based on satisfactory performance, and a past practice of continued adherence to that increment system post contract expiration.

This ruling is incredibly important for New Jersey Public Employee Labor Unions as it provides for clarification of how PERC will treat Governmental increment freezes under its own case law, the dynamic status quo doctrine and the Appellate Division and Supreme Court Decisions in the case entitled In The Matter of Atlantic County.  In conclusion, New Jersey’s governing bodies are now on notice that PERC has moved away from the draconian decisions and polices that were instituted by Kellie Hatfield and Chris Christie’s PERC and the Commission is once again the impartial and unbiased administrative agency that it was created to be.

As reported by NJ.com, the Policemen’s Benevolent Association Local Number 105 (“P.B.A. #105”), the union representing rank-and-file Correctional Police Officers employed by the New Jersey Department of Corrections, among various other State employees, and the largest law enforcement union in the State of New Jersey, is demanding widespread and free testing of both its members and inmates alike at all New Jersey prisons in the wake of yet another unfortunate death of a Correctional Police Officer due to COVID-19. Of critical importance, P.B.A. #105’s demand for testing is being made whether the members, workers, or inmates are symptomatic or not.

Currently, the New Jersey Department of Corrections reports that 460 workers in the State prison system have been diagnosed with COVID-19. Moreover, 24 State Prison inmates, in all, have died so far from COVID-19 and 9 at residential community release programs have tested positive.  To put this into perspective, these totals amount to approximately one out of every ten officers have tested positive for the virus.  This is ten times greater than the positive results that have been reported within the State of New Jersey.  Currently, state employees who are not symptomatic are paying $52.00 each for COVID-19 testing according to William Sullivan, President of P.B.A. #105.

“We’re giving it to each other,” President Sullivan said of the virus. “Officers walk along 3 or 4-foot wide corridors up and down a tier with 90 inmates in cells with open bars breathing on them and each other.”  In other words, social distancing measures are impossible to maintain within a correctional facility, thereby contributing to the potential exposure and spread of COVID-19 within such facilities.

The untimely and unfortunate passing of another officer is another sad reminder of the dangers New Jersey Public Safety Officers are facing on a daily basis as a result of this deadly pandemic. As such, P.B.A. #105’s demand for widespread and free testing for officers, workers, and inmates alike, symptomatic or not, is yet another measure that must be undertaken to safeguard the lives of officers, their families, loved ones, and the public at large. It is a common sense approach that should be utilized not only on the State level, but on the County level as well. In conjunction with providing officers with proper personal protection equipment and non-congregate housing, all avenues to limit COVID-19 exposure must be utilized for those on the frontlines.

Please continue to check this blog periodically to ascertain important updates regarding all issues affecting New Jersey Public Safety Officers.  We continue to thank you for your dedicated and noble service during these unprecedented times.  Stay safe.

Despite the constant influx of novel legal issues caused by the COVID-19 crisis, the New Jersey Appellate Division is still busy at work rendering decisions on all aspects of the law, including those related to labor and employment. Case in point: M.R. v. Board. of Trustees (PERS), No. A-6015-17T4, 2020 N.J. Super. Unpub. LEXIS 615, an unpublished decision where the Court was again asked to determine whether a settlement agreement in a disciplinary action providing for resignation precluded the subject employee from subsequent eligibility for disability retirement benefits. The Appellate Division previously addressed this issue by way of a published opinion in Cardinale v. Bd. of Trustees, 458 N.J. Super. 260 (App. Div. 2019). You can find our summary of that particular opinion here.

This new case, M.R. v. Board. of Trustees, involved a Judiciary employee who agreed to resign in connection with pending disciplinary charges alleging inappropriate conduct and violation of Judiciary policy. Prior to entering into that agreement, however, the employee filed an application for disability retirement with the Public Employment Retirement System (“PERS”) for a health condition that purportedly arose prior to the disciplinary action. The settlement agreement in the disciplinary action provided that the parties took no position on the impact of the settlement upon the employee’s pending disability retirement matter. In the subsequent disability retirement proceeding, the threshold issue was whether the settlement and resignation disallowed the processing of his disability claim. PERS ultimately entered a final decision holding that the settlement agreement and resignation precluded the employee from obtaining disability retirement benefits, leading to the appeal with the Appellate Division. Ultimately, the Appellate Division affirmed the decision of PERS and based its determination on the earlier Cardinale case.

In Cardinale, the court considered an application for disability benefits under the Police & Firemen’s Retirement System (“PFRS”). 458 N.J. Super at 262. The plaintiff in that matter, a former police officer, had voluntarily and irrevocably retired from his position under a settlement agreement after he was suspended for a positive drug test. Id. at 264-65. The Court held “that when a PFRS member—here a police officer—voluntarily irrevocably resigns from active service, such a separation from employment automatically renders the individual ineligible for ordinary disability benefits.” Id. at 263 (emphasis added). The Court found the plaintiff’s claimed disability “irrelevant to its holding that his irrevocable resignation made him ineligible for benefits in the first place.” Id. at 268.

The Court in Cardinale found that N.J.S.A. 43:16A-8(2) dictates that the process whereby a recipient recovers from his or her disability and returns to work is the only way the Board can cut off disability benefits. Id. at 271. If, on the other hand, a worker “irrevocably resigned” from his or her former position, that creates, “a practical problem that strains the workability of the system . . . . the Board cannot statutorily cease paying any approved disability benefits, once they have begun, for an individual who voluntarily resigns from duty to settle disciplinary charges and agrees never to return. [Id. at 270-73.] Consequently, the Court ruled that allowing an employee to seek disability benefits in a situation where he or she had irrevocably retired would prevent the State from ever cutting off disability benefits, even upon recovery, because the employee could never “return” to his or her former employment and that “such an outcome “would violate public policy, contravene the rehabilitation statute, and encourage abuse of the disability retirement system.” Id. at 273.

In the more recent matter, M.R. v. Board. of Trustees, the Court acknowledged that Cardinale involved a different pension scheme, namely, PFRS, rather than PERS. It determined, however, that a comparison of the statutes demonstrated that Cardinale’s logic applied with equal force to PERS given that the various pension schemes were designed to be “part of a harmonious whole.”

The employee in M.R. v. Board. of Trustees presented a novel argument and contended that he was eligible for the disability pension because the disciplinary settlement only barred him from reemployment with the Judiciary. He claimed he can return to employment in a different (non-judicial) branch of State government, and that there is nothing in the settlement agreement “to say that he couldn’t return to his former duties with a different employer.” He argued this possible return to service as a PERS member is consistent with N.J.S.A. 43:15A-44.

The Appellate Division was not persuaded, holding that the employee did not suggest what jobs, if any, outside the Judiciary would be akin to his former “duty” or would require similar responsibilities to his position. The Court held that he cited no cases to support the argument that N.J.S.A. 43:15A-44 envisions allowing an employee to return to “his former duty, just not his former employer” and concluded that the case law supports the contrary proposition, that an employee who retires due to disability and subsequently recovers must be rehired by his former employer in the same or similar position. Because the disciplinary settlement agreement barred that possibility, the Court affirmed the decision of PERS, thereby reaffirming its earlier ruling in Cardinale.