New Jersey Civil Service Discipline FAQs
What is a Preliminary Notice of Disciplinary Action?
New Jersey Civil Service law requires that an employer serve a Preliminary Notice of Disciplinary Action on their employees before they impose discipline. A Preliminary Notice of Disciplinary Action is also known as a PNDA or Form 31-A. In some cases a PNDA must also be served if employers seek to impose an immediate suspension on their employees.
I received a Preliminary Notice of Disciplinary Action, what should I do?
The first thing you should do is to read the PNDA carefully. It will list the charges and specifications which your employer alleges against you. The Preliminary Notice of Disciplinary Action will also tell you how long you have to request a hearing with your employer to defend yourself against the charges. If you choose to request a hearing, you must request for it within the time specified in the PNDA, and the request must be in writing.
Should I request a hearing with my employer?
There are many factors to consider before you request a hearing at the employer level; it’s not a clear cut yes or no answer. In many cases the answer will depend on your employer.
For example, some employers use fair minded hearing officers, in which case employees will get a fair shot; in this case you probably would want request a hearing if the discipline is not deserved, or if the penalty is out of proportion to the offense. However, many employers use hearing officers who tend to rubber stamp the employer’s decision – after all, it is the employer who will be paying them….
However, if the hearing officer and your employer uphold the discipline, your next level of appeal will be in the New Jersey Civil Service CommissionAt this level, either a Civil Service Commission staff member will review your appeal, or the Commission will refer it to the New Jersey Office of Administrative Law where an administrative law judge will hold a hearing and make a recommended decision based on the testimony and other evidence, which the Civil Service Commission will then review and make a final decision. So if your goal is to get your job back or reduce a suspension, requesting an employer level hearing really can’t hurt, but it doesn’t necessarily help.
The calculation is different however, if your goal is not to get your job back or reduce a suspension, but rather to sue in State or Federal court. In that case an adverse decision by a hearing officer could possibly be used in court as evidence against you, or at least as ammunition in settlement negotiations.
What is a Final Notice of Disciplinary Action?
New Jersey Civil Service law requires that an employer serve a Final Notice of Disciplinary Action upon an employee advising her that it imposes final discipline. An FNDA is required whether a hearing was held or not. A Final Notice of Disciplinary Action is also known as an FNDA or Form 31-B.
What should I do if I receive a Final Notice of Disciplinary Action?
You have several options depending upon your goal.
If your goal is to reduce a suspension or get your job back, then within the time specified in the FNDA you must file a notice of appeal with the New Jersey Civil Service Commission. This notice of appeal must be in writing and must normally be received by the Commission within 20 days of the date of the FNDA (some appeals have shorter time periods—read the FNDA!)
However, depending on the facts, you might choose to sue for monetary damages in State or Federal Court. You should consider this carefully, however. First, courts don’t look to see whether your employer made a mistake when making its decision, they look only at whether the employer violated a law when making the decision. The New Jersey Conscientious Employee Protection Act (also known the New Jersey Whistleblower Act or CEPA) or the New Jersey Law Against Discrimination (also known as the NJLAD) are the most frequent bases for an employment lawsuit. Thus, even if the court finds you didn’t commit the claimed infraction, you would still lose your lawsuit if the employer’s intention wasn’t discriminatory or retaliatory.
On the other hand, the New Jersey Civil Service Commission will examine both whether the employer was right or wrong on the facts, and whether the discipline was appropriate to the offense and your disciplinary history (this is known as the concept of “progressive discipline").
Also, the relevant statutes of limitations under most laws give you longer to file a lawsuit in court than to file an appeal with the New Jersey Civil Service Commission. However, litigation in State and Federal court takes significantly longer than appeals in the Commission, although neither is swift.
While the Civil Service Commission is limited in what it can award you if you prevail, typically only the pay you would have earned and in limited circumstances attorneys fees, courts can also award lost future pay and punitive damages.
You should make the decision where to seek relief carefully, because in many if not all cases litigating in one forum will bar you from filing in the other.
Do I need an employment attorney?
No, you are certainly allowed to represent yourself. However, your employer will have an attorney representing it at the Civil Service Commission or in State or Federal court level, and employers will often have an attorney at a department hearing as well. Therefore, an experienced New Jersey Civil Service attorney gives you a distinct advantage over representing yourself. An experienced employment attorney can help you get through the maze of procedural requirements imposed by the Civil Service Commission and State and Federal court. An experienced New Jersey employment attorney can also be invaluable in gathering and presenting admissible evidence. Even though it is not required, having an experienced employment attorney on your side is a significant advantage.
Do you represent employees in civil service discipline cases?
Yes, we do. Our New Jersey civil service attorneys represent civil service employees in lawsuits and appeals, New Jersey Civil Service Commission appeals, and employer level hearings. Fill out the contact form on this page or call us at (973) 890-0004 to set up a consultation with one of our New Jersey employment attorneys. We can help.