Effect of Criminal Charges on New Jersey Public Employees
Our New Jersey employment lawyers represent state and local public employees in a wide range of labor and employment law matters. This includes employee discipline.
New Jersey employment law and criminal law both provide that government employees – both civil service and non-civil service employees – may be fired if they are convicted of a crime, and for many convictions they are required to be fired. During the period while the charges are pending, they may be suspended. However, they may be reinstated if they are cleared of the charges. Despite reinstatement, they may further discipline; but they may receive back pay, seniority and benefits for the period of their suspension if they are not further disciplined.
Suspension While Charges are Pending
An employee’s criminal conviction is grounds for discipline under New Jersey Civil Service regulations. If an employer suspends an employee while criminal charges are pending, the employee must be given a Preliminary Notice of Disciplinary Action (known as a “PNDA”). The PNDA must advise the employee that forfeiture of her job may result, and that she may consult with an attorney. In such cases representation by an attorney is recommended. Within five days of receiving the PNDA, the employee may request a hearing. If a hearing is not requested the employer may issue a Final Notice of Disciplinary Action (an “FNDA”) imposing the suspension.
The hearing is limited to “whether the public interest would best be served by suspending the employee until disposition of the criminal complaint or indictment.” This must be based on (1) the employee’s fitness for duty, (2) whether the employee would be a hazard to anyone if still on the job, or (3) that immediate suspension is required for the safety, order or effective direction of public services.
If the employee is charged with a first, second or third degree crime, or a crime of the fourth degree which directly relates to the employee’s job or which allegedly occurred while the employee was on the job, the suspension may be indefinite through the disposition of the charges.
Forfeiture by Court Order
The Criminal Code requires that a New Jersey government employee must forfeit his job if convicted of certain criminal offenses. It further requires that that the judge must order forfeiture of public employment as part of the sentence if the employee is convicted of a crime “touching” upon the employee’s position; a crime of the third degree; an offense of dishonesty; a crime which the New Jersey Constitution requires forfeiture for; or the equivalent if the conviction is in a different state.
Disciplinary Action Where No Forfeiture Order by Court
A public employer may discipline an employee even though she might have been found not guilty. Because of the different elements required to prove a disciplinary infraction and the different burdens of proof between disciplinary hearings and criminal prosecutions, a not guilty finding does not mean the employee cannot be found to have committed a disciplinary violation, for example conduct unbecoming a public employee. Thus, if the criminal action did not result in a forfeiture order and the appointing authority still wants to pursue discipline, it must issue another PNDA for the charges which remain.
If the employee pled guilty or was convicted but the court failed to issue a forfeiture order, the employer may apply to the court for a forfeiture order. Disciplinary proceedings are not necessary in this case. If the court does not enter the order, the employer may still pursue disciplinary charges.
Back Pay, Seniority and Benefits After Suspension Because of Criminal Charges.
New Jersey Civil Service regulations provide that “Where an employee, other than a municipal police officer, has been suspended based on a pending criminal complaint or indictment, following disposition of the charges the employee shall receive back pay, benefits and seniority if the employee is found not guilty at trial, the complaint or indictment is dismissed, or the prosecution is terminated.” In other words, the criminal proceeding must result in the employee being exonerated to receive back pay, benefits and seniority.
However, when an employer seeks to impose discipline after the criminal charges are over, back pay, benefits and seniority will not be awarded if the employee is terminated as a result. If the public employee is suspended rather than fired, “where the employee has already been suspended for more than six months pending disposition of the complaint or indictment, the disciplinary suspension shall be applied against the period of indefinite suspension.” In that case, the public employee will receive back pay for the suspension period over six months, unless the employer denies back pay “for good cause.”
Pre-Trial Intervention and Conditional Discharges
Employees who enter Pre-Trial Intervention (“PTI”) or receive a conditional discharge may be suspended until the completion of PTI or a final dismissal of the conditionally dismissed charges. Until such time the charges will not be considered “disposed of.” Moreover, employees entering into PTI or receiving conditional discharges will not be deemed an exonerated, and therefore will not receive back pay, seniority and benefits.
Our New Jersey employment law attorneys represent local and New Jersey State government civil service and non-civil service employees in all types of employment matters including disciplinary appeals. Call us at (973) 890-0004 or fill out the contact form to schedule an appointment for a consultation with one of our New Jersey employment lawyers. We can help.