Minor and Major Civil Service Discipline

Our New Jersey Civil Service attorneys represent government employees in challenging civil service discipline by New Jersey state and local civil service employers.

Background

In New Jersey, Civil Service exists to remove favoritism, discrimination, nepotism, politics or other improper considerations from employment decisions, and to make sure they are based on the person’s merit. Thus, permanent, career service employees may only be disciplined for “just cause.” Likewise, because Civil Service employers are the government, employees whom a public employer seeks to discipline are entitled to receive the constitutional protections of due process. Due process requires that the employee receive notice of the charges against her, the chance to be heard on the charges (ie., the right to defend herself), and fundamental fairness.

The employer fulfills the notice requirement through serving a Preliminary Notice of Disciplinary Action (known as a PNDA, or Form 31A) on the employee. The PNDA contains the charges and specifications of which she is accused and the discipline sought. The employee has the right to a hearing, and the right to appeal, although besides the amount of discipline appeal rights are the greatest difference between major and minor discipline.

Major discipline is termination, or a suspension or fine of more than five days. Minor discipline is a written reprimand, or a suspension or fine of five days or less. Employees may appeal major discipline directly to the Civil Service Commission, but not minor discipline. Minor discipline may only be appealed by filing an action in the Law Division of the Superior Court of New Jersey, which is a cumbersome and expensive process that often deters employees from appealing minor discipline.

Major Discipline

Major discipline includes termination, disciplinary demotion, and suspension or fine for more than five working days. Examples of disciplinary violations warranting major discipline under the New Jersey Civil Service law include:

• Refusing to submit to legally valid drug test.
• Correction officer assaulting prisoner.
• Theft, whether or not resulting in conviction.
• Fraternizing with an inmate.
• Habitual lateness.
• Inability to perform job with reasonable accommodation because of disability. While this is not fault based, it does entitle the employee to receive the same due process protections as major discipline. The burden of proof is on the employer.
• Criminal activity, even if not resulting in a conviction (because of the differing burdens of proof).
• Incompetency or inefficiency.

Suspensions cannot exceed six months unless the employee is suspended while criminal charges are being prosecuted. Local government employers may suspend an employee with or without pay. State suspensions are always without pay unless the employee’s department head expressly authorizes pay. Both local and State governments employers may impose “on the record” suspensions when the employee agrees.On the records suspensions may be used in future disciplinary actions for progressive discipline.

Employee may pay fines in lump sum or installments payments.

Minor Discipline. Minor discipline is a suspension or fine of up to five working days, or a written reprimand. Minor discipline may be imposed for same infractions as major discipline. Due process applies to minor discipline as well as major discipline. Minor discipline may be challenged by filing an action in lieu of prerogative writ in the Law Division of the Superior Court of New Jersey within 45 days of the final discipline.

Hearings

Notice is part of the due process requirements of New Jersey Civil Service law with which government employers must comply. The PNDA must tell the employee that she has the right to a hearing at the appointing authority level to challenge the charges against her. If the employee requests a hearing, she must receive it before final discipline is imposed. The employee has the right to a separate hearing if the employer seeks an immediate suspension on the sole issue of whether the immediate suspension is appropriate. The employee will receive a Final Notice of Disciplinary Action (an “FNDA” or Form 31-C) giving the decision and penalty if the discipline is upheld.

Hearings should be held during regular work hours, if possible. Employees, union representatives and witnesses are given time off, including reasonable travel time, to participate.

Contact Us

Fill out the contact form on this page or call (973) 890-0004 to schedule a consultation with one of our New Jersey civil service lawyers. We can help.