AG Requires New Jersey Police Departments To Randomly Drug Test Officers

The New Jersey Attorney General has issued new directive requiring all law enforcement agencies in the state to conduct random drug testing. The guidelines now make all officers subject to drug testing, whether they are employed by state, county, or municipal departments. At a minimum, random drug testing shall be conducted at least once for the remainder of 2018 and at least twice every year thereafter. At least 10% of the total number of sworn officers in an agency shall be drug tested every year.

Each agency must also notify officers of the implementation of the random drug testing policy. This includes notification that, upon an initial positive result, the officer shall be suspended from all duties. Upon final disciplinary action, the officer shall be terminated from employment as a law enforcement officer, reported to the Central Drug Registry maintained by the State Police, and permanently barred from future law enforcement employment in New Jersey.

The new guidelines also contain reporting requirements. Each department will be required to notify the County prosecutor within 10 days of (1) a positive drug test by an officer, (2) a refusal by an officer to take a drug test, or (3) administration of a reasonable suspicion drug test to an officer. Upon completion of any disciplinary action, each agency shall report the discipline to the County Prosecutor. By December 31 each year, each law enforcement agency shall provide written notice to the County prosecutor of the dates of testing conducted during the prior year, the total number of sworn officers employed by the agency, the total number of sworn officers tested, and the total number of sworn officers who tested positive.

By January 31 of each year, each County prosecutor will have to send the Attorney General a report including a statement indicating those agencies under the County Prosecutor’s supervision that are in compliance with this Directive and those that are not. Neither summary shall reveal any subject officer’s identity.

Law enforcement agencies are required to adopt or amend their random drug testing policies to meet these new requirements within 30 days of the March 20, 2018 directive. Aside from these minimum requirements, the drug testing procedures themselves are unchanged.

For more information regarding this directive and best practices for implementing appropriate drug testing policies and procedures, please contact Joseph M. Hannon, Esq. at jhannon@nullgenovaburns.com or Jennifer Roselle, Esq. at jroselle@nullgenovaburns.com, attorneys in the firm’s Labor Law Practice Group, or call 973-533-0777.

New Jersey Supreme Court Says Salary Step Increments are Negotiable, but Avoids Dynamic Status Quo Issue

In a highly anticipated decision, the New Jersey Supreme Court held that the issue of salary step increments is a mandatorily negotiable term and condition of employment.  However, the Court did not decide whether New Jersey’s Public Employment Relations Commission was correct to adopt the static status quo doctrine in lieu of the dynamic status quo doctrine.  Instead, the Court determined that the express terms of the parties’ expired CNAs required the public employer at issue to advance employees along those CNAs’ salary step guides, even after those CNAs expired.

The issues presented to the Supreme Court originated in the cases of In re County of Atlantic and In re Township of Bridgewater.  In County of Atlantic, PERC determined that, given the current landscape, the static status quo doctrine would advance labor negotiations between New Jersey’s public employers and employees better than the dynamic status quo doctrine, which PERC previously followed.  Under the static status quo doctrine, employees do not advance along a contract’s salary step guide between the time that the contract expires and before a subsequent contract is executed, whereas the opposite is true under the dynamic status quo doctrine.  On the heels of County of Atlantic, PERC decided Township of Bridgewater, in which it concluded that the issue of salary step increases after contract expiration is not a term and condition of employment and therefore not mandatorily negotiable.  On appeal, New Jersey’s Appellate Division reversed PERC.  The Appellate Division found that PERC was not authorized to depart from the dynamic status quo doctrine in the manner that it did, and that post-contract step increases are terms and conditions of employment that cannot be terminated unilaterally.

Ultimately, the Supreme Court affirmed the Appellate Division’s decision on “other grounds.” Nevertheless, the Supreme Court undermined PERC’s Bridgewater decision, when the Court concluded that the issue of salary step increments is a mandatorily negotiable term and condition of employment because that issue “is part and parcel to an employee’s compensation for any particular year.” However, because the Supreme Court’s decision rested upon specific contract language, the Court did not decide the issue of which status quo doctrine is appropriate. Nevertheless, the Court suggested that a contract that is silent with respect to the impact of contract expiration on step increases may require “careful consideration of past practices, custom and the viability of the dynamic status quo doctrine.” Accordingly, the Supreme Court advised that “parties would be wise to include explicit language indicating whether a salary guide will continue beyond the contract’s expiration dates.”

For more information about the Supreme Court’s decision and how it may impact your public entity’s labor contract negotiations, please contact James J. McGovern, III, Chair of the firm’s Labor Law Practice Group, at jmcovern@nullgenovaburns.com or 973-535-7122, or Joseph M. Hannon, Counsel in the firm’s Labor Law Practice Group, at jhannon@nullgenovaburns.com or 973-535-7105. Please also sign-up for our free Labor & Employment Law Blog at www.labor-law-blog.com to keep up-to-date on the latest news and legal developments affecting your workforce.

Appellate Division Finds c.78 Health Benefits Contributions Requirements Do Not Apply to Public Sector Disability Retirees

Last month, in Brick Twp. PBA Local 230 v. Twp. of Brick, the Appellate Division of the Superior Court of New Jersey confirmed that N.J.S.A. 40A:10-21.1, P.L. 2011, c. 78, § 42, more commonly known as Chapter 78, does not require ordinary disability or accidental disability retirees of public employers to make premium payments for health insurance benefits.

Chapter 78, concerning public employee pension and health care benefits, was passed in recognition of “serious fiscal issues” confronting the State and the underfunding of the pension system. It implemented various changes to pension and health care benefits such as increased required contributions from public employees and suspension of cost-of-living adjustments.  Among these reforms included requirements for certain retirees to pay contributions toward their health benefits in retirement.

In Brick, the Township had required a former police employee, who had retired due to a disability he had sustained while on duty in 2011, to continue making health insurance premium contributions in order to maintain his retiree health benefits coverage. The trial court concluded that Chapter 78 exempted only those employees with 20 or more years of service on its effective date from having to make contributions toward health benefits in retirement. Due to the fact that the employee had served only 19 years, the trial court believed that his obligation to make contributions was required by Chapter 78.

On appeal, the Appellate Division considered “whether Chapter 78 applies to government employees who receive disability retirement benefits.” The Appellate Division opined that the clear language of Chapter 78 does not require that contributions be made by those who retire on disability pensions even if they have less than 20 years of pensionable service. The Court found support for its conclusion based on the fact that the Legislature had designated different statutory sections for employees disabled while at work, which was further supported by the legislative history of Chapter 78. Thus, the Court reasoned that while ordinary retirement is linked to a member’s age or years of service, disability retirement is not predicated on length of service or age, but awarded because of an employee’s disability.

Thus, the opinion suggests that Chapter 78 contributions requirements apply with respect to active public employees and those who retire based on meeting the service requirements. In contrast, those who are forced to retire on an ordinary disability or accidental disability retirement are exempt from making premium payments for health insurance benefits.

If you have any questions or for more information regarding Chapter 78 health benefits or the impact of other laws affecting public employers, please contact Joseph M. Hannon, Esq., jhannon@nullgenovaburns.com or Brett M. Pugach, Esq., bpugach@nullgenovaburns.com in the Firm’s Labor Law Practice Group.