Progressive Discipline: Consideration of Prior Discipline in Civil Service Discipline

Our attorneys represent public and private sector employees in all aspects of New Jersey employment law.  However, public sector employment law has many unique aspects not applicable to the private sector.  One of these areas is the consideration of prior history in employee discipline, a doctrine known as “progressive discipline.” This is most expressly seen in discipline under the civil service system, but the concept also applies in non-civil service jurisdictions as well, including the discipline of teachers and other teaching staff members.

Discipline for employees of the State of New Jersey and many of New Jersey’s county and local governments, as well as many of its boards and commissions, is governed by New Jersey’s Civil Service Act and the regulations of the New Jersey Civil Service Commission.  The concept of progressive discipline must be considered.  While progressive discipline is only one factor in determining discipline, it is one of the most important.

Progressive discipline was apparently first required to be considered by the New Jersey Supreme Court in the 1962 case of West New York v. Bock.  Basically, progressive discipline is used to determine what the proper penalty should be for a disciplinary infraction, although it may not be used to prove that the employee actually committed the alleged violation. 

Essentially, what progressive discipline requires is that the employee’s disciplinary history be taken into account when imposing discipline.  For instance, two employees who had each been working for five years might have been late one day.  However, under progressive discipline, if it was one employee’s first offense and the other employee was chronically and regularly late without good cause, the first employee might receive no discipline at all while the second employee might be fired.  Progressive discipline takes into account that minor offenses can be magnified by a history of misconduct, but that in most cases a clean disciplinary record will mitigate punishment. 

However, progressive discipline is not required in every case.  Some offenses are so severe that major discipline, even up to termination of employment, may be appropriate for a first offense.  Thus depending on the severity of the offense and the history of the employee, progressive discipline may support either lighter or harsher discipline.

The concept of progressive discipline applies to all civil service employees.  However, law enforcement officers are held to a higher standard due to the public trust placed in them because of their work involving public safety and enforcing the laws.

Progressive discipline must be considered by the employer in imposing penalties for infractions.  It is also a factor in appeal.  When an employee appeals discipline to the New Jersey Civil Service Commission, the matter is usually referred to the Office of Administrative Law for a trial by an administrative law judge (administrative law judges are known as ALJs).  Not only will the ALJ hear testimony and evidence on guilt, she will also apply progressive discipline to the employee’s disciplinary history and the nature of the offense to determine whether the discipline was appropriate.  The Civil Service Commission will review the ALJ’s decision,  including whether progressive discipline was correctly applied.  Appellate courts will also review the Commission’s decision in any appeals examining the use of progressive discipline. 

In short, the concept of progressive discipline is a bedrock principle in New Jersey employment law governing the discipline of government employees.

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Our employment attorneys represent New Jersey employees in all aspects of employment law.  We represent New Jersey government employees in employer level hearings, appeals to the Civil Service Commission, hearings before an ALJ in the Office of Administrative law, and appeals to New Jersey’s appellate courts.  For a consultation with one of our employment attorneys, please email us or call (973) 890-0004.  We can help.

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