Supreme Court Bids Farewell to Mandatory Public-Sector Union Agency Fees in Janus Ruling

On June 27, the Supreme Court issued a 5-4 opinion in Janus v. American Federation of State, County, and Municipal Employees, Council 31, Dkt. No 16-1466, holding that compulsory payment of public-sector union fees by non-union members violates First Amendment free speech rights.

The petitioner in Janus, challenged the constitutionality of an Illinois law requiring public employees to pay union agency fees, despite an employee’s choice not to join the union and his strong objection to the union’s positions in collective negotiations. The petitioner argued that the payment of mandatory agency fees by nonmembers in connection with collective negotiations for government employees is inherently political and violates the First Amendment. Siding with the petitioner and striking down the Illinois law, the Supreme Court overturned its prior 1977 decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

In Abood, the Supreme Court held that a union could constitutionally collect from dissenting employees financial support for collective negotiations so long as the fees were not used for ideological or political causes not germane to the union’s duties as the collective negotiations agent. In the Janus opinion, Justice Samuel Alito wrote that “Abood was wrongly decided and is now overruled,” concluding that the mandatory payment of public-sector agency fees violates the free speech rights of nonmembers by compelling them to subsidize private speech. Under Janus, “States and public-sector unions may no longer extract agency fees from nonconsenting employees.” However, the Court stated that unions could require payment from nonmembers for union representation in disciplinary matters and grievances.

The Janus decision leaves open the specific timeframe by which an employee may revoke compulsory payment of public-sector union fees.

For New Jersey public employers, the Janus decision must be applied in light of the requirements of the recently enacted Workplace Democracy Enhancement Act (“WDEA”). The WDEA includes requirements regarding an employee’s withdrawal of consent for the union to collect fees. Additionally, the WDEA prohibits public employers from encouraging employees to revoke their union fee deductions and from discouraging employees to join, form or assist a union. Public employers should be prepared to receive employees’ withdrawals of consent and should continue to follow the current statutory WDEA requirements.

If you have any questions or would like to discuss how the Janus decision or the WDEA affects you, please contact Joseph M. Hannon, Esq. at 973-535-7105 or, or Jennifer Roselle, Esq. at 973-646-3324 or

Appellate Division Reverses PERC Decision on Dynamic Status Quo

For many years, public employers were required to pay increments on an expiring salary guide for its unionized workforce under a doctrine known as the dynamic status quo.  This doctrine was created by the Public Employment Relations Commission (“PERC”) in interpreting the Employer-Employee Relations Act, N.J.S.A. 34:13A-1, et. seq.  Recently, PERC abandoned the dynamic status quo doctrine in two matters holding that the doctrine no longer served the purposes of prompt labor disputes.  Accordingly, public employers were not required to pay increments upon the expiration of a collective negotiations agreement.

In the companion cases of County of Atlantic and PBA Local 243, et. al. and Township of Bridgewater and PBA Local 174, the Appellate Division reversed  PERC and held that PERC acted outside of its legislative mandate in abandoning the dynamic status quo.

PERC utilized the tax cap levy law and the 2% cap on interest arbitration awards as reasons why the dynamic status quo doctrine no longer served the interests of the parties.  PERC, using its expertise in this area, reasoned that these restrictions on public employers put significant restrictions on the parties’ flexibility in negotiations.  Therefore, PERC determined that employers were not required to pay these increments.

The Appellate Division reasoned that PERC went too far in abandoning the dynamic status quo doctrine.  The court determined that the tax cap levy law and the cap on interest arbitration law did not prohibit the payment of increments on an expired collective negotiations agreement.  Further, the court indicated that PERC did not appropriately interpret the Act.  In essence, public employers are free to negotiate not paying the increments or determining other methods to recoup the salary increments.

The practical effect of the decision is that public employers will again be subject to the dynamic status quo doctrine.  Accordingly, unless negotiated otherwise, salary increments will have to be paid once a collective negotiations agreement has expired and an agreement on a successor contract has not been reached.

For more information regarding the effects of this decision, please contact Joseph M. Hannon, Esq. at or 973-533-0777.

PERC Decision Lays Groundwork for Negotiations Once Chapter 78 Contributions are Fully Implemented

New Jersey’s Public Employee Relations Commission (“PERC” or the “Commission”) has weighed in on the issues of (1) when health insurance contributions become negotiable once the fourth tier of contributions under Chapter 78 is completed and (2) at what level of contributions do negotiations commence once the contributions are negotiable. In Clementon Board of Education v. Clementon Education Association, P.E.R.C. NO. 2016-10, Docket No. SN-2015-041, August 13 2015, PERC agreed with the school board, ruling that the teachers’ union cannot  negotiate premium contributions for the successor agreement until the next collective negotiations agreement after Chapter 78 contributions become fully implemented.

To review, in 2011, the legislature passed a pension and health benefit reform act, P.L. 2011, c. 78, commonly referred to as “Chapter 78” which required a four-tiered implementation of health care contributions based on employee salary. Although the law went into effect on June 28, 2011, for unionized employees, Chapter 78’s implementation date was tied to the expiration of the collective negotiations agreement. Thus, once an agreement expired after June 28, 2011, the four-year implementation period began.  For many public employers the implementation date for Chapter 78 contributions varied with each bargaining unit.

In Clementon, the final year of the four-year phase-in of higher health insurance contributions overlapped with the first year of a new agreement. The teachers union argued that as soon as full implementation of Tier 4 has occurred, health benefit contributions should become immediately negotiable for the successor agreement even if full implementation occurs mid-term in the agreement. The school district disagreed, arguing health benefits should remain as is under Chapter 78 until the next round of negotiations for a new contract. The Commission sided with the school board, deciding negotiations of health benefit contribution should not occur until the next contract is negotiated.

PERC found that Chapter 78 expressly, specifically and comprehensively sets forth that health benefit contribution levels become negotiable in the “next collective negotiations agreement after … full implementation” of the four-tiered level of employee contributions is achieved. In so deciding, PERC laid the groundwork for handling negotiations of health insurance contributions once Chapter 78 is fully implemented.

For example, if Tier 4 payments are fully implemented on December 31, 2015 and the collective negotiations agreement does not expire until December 31, 2016, then health insurance contributions do not become negotiable until January 1, 2017.  This is true whether or not the collective negotiations agreement is expired or not.  Negotiations are tied to when Chapter 78 contributions are fully implemented, i.e. the full year of Tier 4 payments are completed, regardless of term.

Additionally, PERC determined that health insurance contributions shall be negotiated from the Tier 4 structure once negotiations are permitted.  Therefore, once negotiations begin on this issue pursuant to the timeframe explained above, the parties shall treat contributions as if the Tier 4 payments are part of the collective negotiations agreement.

According to the New Jersey Education Association’s (“NJEA”) website, NJEA plans to appeal the Commission’s decision in Clementon.

For more information on the Commission’s decision and how it will affect a public employer’s existing and future contracts, please contact Joseph M. Hannon, Esq. at or Jennifer Roselle, Esq. at


NJ Attorney General Releases New Directives and Guidance on Police Use-of-Force Investigations and Body Cameras

On July 28, 2015, John J. Hoffman, Acting Attorney General, issued a supplemental directive regarding the Uniform Statewide Procedures and Best Practices for Conducting Police Use-of-Force investigations (“Supplemental Directive”) and also issued Directive No. 2015-1, regarding Police Body Worn Cameras (“BWCs”) and Stored BWC Recordings (“BWC Directive”).

Deadly Force Investigations

The Supplemental Directive supplements, and to the extent it is inconsistent, supersedes contrary provisions of prior Directive 2006-5.  It concerns use-of-force investigations, which pertains to any use of force by a law enforcement officer involving death or serious bodily injury, or where deadly force is employed with no injury, or where any injury to a person results from the use of a firearm by a law enforcement officer.

The Supplemental Directive requires a comprehensive conflicts inquiry when use-of-force investigations are conducted by the County Prosecutor or the Division of Criminal Justice, followed by appropriate action to, for example, reassign the investigation or order recusal of specific persons so as to not compromise the impartiality and independence of the investigation.  It also requires that prior authorization be granted by the assistant prosecutor or assistant/deputy attorney general supervising the investigation, prior to disseminating investigative information to the principal of the investigation and/or other witnesses.

Additionally, employees of the police department or agency that employs the principal of the investigation are generally not permitted to participate in the investigation (although they can still act as first responders to a scene, help secure a scene, and facilitate medicate assistance to injured parties).  There are some exceptions to the rule for good cause, when such employees are necessary to assist in the investigation (e.g. those with specialized crime scene investigation skills and forensic testing expertise).

Furthermore, the Supplemental Directive provides that generally, use-of-force matters investigated must be presented to a grand jury for independent review if the use of force resulted in death or serious bodily injury, or if the interests of justice would be served by having the matter reviewed by a grand jury.  Such matters are not required to be presented to the grand jury where the undisputed facts indicate that the use of force was justifiable under the law.  However, where the matter is investigated by the County Prosecutor, and he/she determines that the matter does not need to be presented to the grand jury for independent review, the Prosecutor must prepare and submit a report summarizing the results of the investigation and explaining the reasons for such recommendation.  Such report shall be reviewed by the Director of the Division of Criminal Justice (“Director”), who will make the determination as to whether the matter should be presented to the grand jury.  Where the matter is investigated by the Attorney General Shooting Response Team, and the Director determines that the matter does not need to be presented to the grand jury, the Director must prepare a similar report, to be reviewed and acted upon by the Attorney General in similar fashion.

The Supplemental Directive gives specific direction on what types of instructions are required to be given to the grand jury in such matters.  Moreover, it provides that two different grand juries are needed in such cases, as two separate determinations need to be made:  (1) the underlying offense giving rise to the police use of force (i.e. crime alleged to have been committed by civilian injured by police force); and (2) whether the police use of force was unlawful.

For such matters that are not presented to a grand jury or where the grand jury returns a “no bill”, the County Prosecutor (or Director in matters investigated by the Attorney General Shooting Response Team) must prepare a statement for public dissemination with specific information, including but not limited to specific findings regarding the factual circumstances of the incident and the lawfulness of the police use of force.  Such statement must be provided to the Attorney General or his/her designee, and, after being released to the public, must be made available on the internet.  Furthermore, in such circumstances (no presentation to grand jury or “no bill”), the matter shall be referred to the appropriate agency for administrative review in accordance with the AG’s Internal Affairs Policy and Procedures manual.

The Supplemental Directive can be accessed here, and a Deadly Force Investigation Fact Sheet can be accessed here.

Body Worn Cameras

The BWC Directive applies when a police department decides to deploy body cameras, in which case such police departments must promulgate and enforce a policy that complies with the BWC Directive within 60 days of its issuance.  For those police departments that have not deployed body cameras, they must first promulgate such a policy prior to adopting their use.  However, the BWC Directive does not mandate that police departments require the use of such body cameras.  Additionally, while the BWC Directive provides foundational requirements concerning the use of body cameras, individual police departments are permitted to impose additional requirements that are not inconsistent with the BWC Directive.

The BWC Directive requires that certain notice be given to generally inform citizens that the police department deploys body cameras, as well as specific notice to certain individuals during an encounter.  It also requires that, in most circumstances, officers respond truthfully when a civilian inquires as to whether or not the device is activated.

The BWC Directive sets forth instances wherein body cameras must be activated, which include instances such as traffic stops, witness interviews, custodial interrogations, protective frisks, searches, and arrests.  Moreover the body cameras must be kept on during deadly force incidents and related on-scene investigations.  By contrast, body cameras may not be activated where it would expose an undercover officer or a confidential informant, or where a civilian requests that the device be turned off in certain circumstances.  Further limitations are placed on private homes, schools, hospitals, or places of worship, unless the situation involves responding to a crime or emergency.

Furthermore, the BWC Directive requires that BWC recordings be retained for a period of not less than 90 days, subject to additional or extended retention periods for certain criminal investigations, prosecutions, and internal affairs complaints.  It also provides restrictions on access to, use, and dissemination of BWC recordings, and public disclosure of same.

The effective date of the BWC Directive is 60 days after its issuance.  The BWC Directive can be accessed here, and a Body Camera Police Fact Sheet can be accessed here.

For more information regarding these directives and best practices for implementing appropriate policies and procedures concerning use-of-force investigations and/or body cameras, please contact Joseph M. Hannon, Esq. at or Brett M. Pugach, Esq. at, attorneys in the firm’s Labor Law Practice Group, or call 973-533-0777.

Obama Continues to Push For Federal Sick Leave

During his 2015 State of the Union address, President Obama continued his push for a mandatory paid sick leave law by calling on Congress to act and send him a bill.

The White House first announced its plans last week in a post published on LinkedIn.  Stating that the United States’ failure to require employers to provide paid family is “shameful,” Senior White House Adviser Valerie Jarrett advised that the President would call on Congress to require companies to give workers up to seven days of paid sick leave a year. The proposal, called the “Healthy Families Act,” would allow employees to earn a minimum of seven paid sick days per year.

In addition to pushing Congress to act, President Obama followed up on a promise made during his 2014 State of the Union address by signing a presidential memorandum (a tool similar to an executive order used to direct federal agencies to implement a White House policy), giving federal employees access to six weeks of paid parental leave by allowing new parents to advance their sick time.  While the Family Medical Leave Act (“FMLA”) already provides workers with the ability to take time off to care for their own health or that of certain family members, the leave is unpaid.

In order to promote change and action in the state level, the President has proposed $2.2 billion in new funds in the 2016 budget to encourage states to adopt their own paid leave programs. In New Jersey, a bill that would require paid sick time for all employees, including part-timers, was advanced by state legislators in December. In its current form, the NJ bill would require employers with fewer than 10 employees to offer at least 40 hours of sick time per year, while businesses with more than 10 employees would have to offer at least 72 hours of paid sick time per year.

For questions related to this legislation or compliance with local paid sick time laws,please contact Dina M. Mastellone, Esq., Director of the Human Resource Practices Group and Counsel in the Employment Law & Litigation Group, at, or Eileen Fitzgerald Addison, Esq., Associate in the Human Resource Practices Group, at

Affordable Care Act Update: Volunteer Firefighters And Other Emergency Responders Are Not Full-Time Employees Or FTE’s Under ACA

On January 10, 2014 the U.S. Department of Treasury announced that volunteer firefighters and other emergency responders (“volunteer emergency personnel”) at governmental or tax-exempt organizations “generally” need not be counted as full-time employees or full-time equivalents (“FTE’s”) under the Affordable Care Act’s (“ACA”) final regulations.  The Treasury also announced that the final regulations will issue “shortly.”

Effective January 1, 2015 an employer with 50 or more full-time employees or FTE’s will be subject to ACA’s penalties unless it offers affordable health coverage to an employee who works an average of at least 30 hours per week or 130 hours per month.  Although the tax treatment of stipends and other reimbursements paid to volunteer emergency personnel provides some precedent for treating volunteer firefighters as employees, ACA’s proposed regulations do not address whether these workers will be treated as full-time employees or FTE’s.  Local fire and EMS departments could potentially exceed the 50-employee threshold and be subject to ACA’s penalties if volunteer emergency personnel must be counted as full-time employees or FTE’s under ACA.

The Treasury’s announcement this week clearly states that volunteer emergency personnel hours will not count in determining whether an employer meets the 50-employee threshold.  Likewise, an employer that exceeds the 50-employee threshold will not be subject to ACA’s penalties on the sole grounds that it does not offer coverage to volunteer emergency personnel.  Consequently, municipalities that offer volunteer emergency services avoid a potential financial burden with the final regulations’ exemption of voluntary emergency personnel.  If you have any questions or for more information about ACA and its impact on your organization or your employees’ benefit plans, please contact Patrick W. McGovern, Esq.,, Gina M. Schneider, Esq.,, or Phillip M. Rofsky, Esq.,, in the Firm’s Employee Benefits Practice Group.

N.J. Supreme Court Holds Public Employer Must Reimburse Co-Payment Increases to Union

On March 19, 2013 the Supreme Court of New Jersey held that the Borough of East Rutherford must reimburse co-payment increases for doctors’ visits to its police union, PBA Local 275.  The Supreme Court concluded that the Borough violated the parties’ collective negotiations agreement (“CNA”) when it doubled the PBA’s co-payments for doctors’ visits prior to the CNA’s expiration.  Pursuant to the CNA effective January 1, 2005 through December 31, 2009, the Borough provided health insurance coverage to PBA members through the State Health Benefits Plan (“SHBP”).  Prior to and at the commencement of the CNA’s effective date, the SHBP required a $5 co-payment from plan participants for doctors’ visits.  Effective January 1, 2007, the SHBP statute was amended and the co-payment requirement was increased from $5 to $10.  The Borough passed along this increase to the PBA.

The PBA filed a grievance and claimed that the co-payment increases directly violated the terms of the CNA.  In turn, the Borough filed a scope of negotiations petition with the New Jersey Public Employment Commission (“PERC”) to restrain arbitration and argued that 2007 SHBP amendment preempted the arbitrability for reimbursement of co-payment increases.  PERC denied the Borough’s request to restrain arbitration and the matter proceeded to arbitration.  The Arbitrator determined, consistent with PERC’s determination, that the grievance was arbitrable because there was no preempting statute or regulation. The Arbitrator also concluded that the Borough violated the CNA.  In interpreting and applying the plain language of “Preservation of Rights” article of the CNA, the Arbitrator determined that the prior existing co-payment obligation must be maintained throughout the duration of the agreement. Additionally, the Arbitrator characterized the former level of co-payment required of PBA members as a past practice between the parties.  Thereafter, the award was appealed.  Ultimately, the Supreme Court held that the award was not contrary to existing law or public policy and the Arbitrator reasonably interpreted the CNA.  Therefore, the Borough must reimburse the co-payment increases to the PBA.

Public employers should be aware that prior existing co-payment obligations set forth in a CNA must be maintained throughout the duration of the agreement unless the parties agree to alter the terms.  Public employers are advised to consult with labor counsel prior to implementing any changes to the terms set forth in a CNA. Should you need any assistance interpreting, implementing or negotiating a CNA, please contact  Joseph M. Hannon, Esq. at or Phillip M. Rofsky, Esq. at in the Labor Law Practice Group.

OFCCP Issues New Directive Aimed At Detecting Pay Discrimination Based on Gender, Race and Ethnicity

On February 28, 2013, the Office of Federal Contract Compliance Programs (OFCCP) issued new procedures for assessing contractor and subcontractor disparate pay practices. OFCCP rescinded its 2006 Compensation Standards and Voluntary Guidelines because they were too limited. Now, as Directive 307 makes clear, OFCCP’s goal is to engage in a more fact-specific approach and align its enforcement methodology with Title VII of the Civil Rights Act of 1964.

Directive 307 gives OFCCP compliance officers the following directions in assessing employer pay practices going forward:

  1. Analyze summary data such as overall pay differences based on race and gender and the number of employees affected by race or gender-based pay differences within job groups;
  2. Analyze individual employee-level data;
  3. Refine the investigative approach using a range of analytical tools and determine whether (a) there is a measurable difference in compensation on the basis of sex, race or ethnicity; (b) the difference in compensation relates to employees who are comparable under the wage or salary system; and (c) there is a nondiscriminatory explanation for the difference;
  4. Review all employment practices that may lead to compensation disparities, not just compensation policies. This development is a dramatic expansion of OFCCP’s compensation analysis, which formerly focused only on salary but now extends to overtime pay, shift differentials, commissions, bonuses, vacation and holiday pay, retirement and other benefits, stock options and awards and profit sharing;
  5. Develop pay analysis groups to test for statistical significance on large groups of employees;
  6. Inquire as to systemic, small group and individual discrimination to uncover possible systemic issues such as a pattern or practice of discrimination or a discrete employment practice with adverse impact;
  7. Review and test factors used for compensation decisions and evaluate whether the factors are relevant and applied consistently; and
  8. Perform an onsite investigation.

Directive 307 makes clear that OFCCP is taking a more sweeping approach to reviewing employers’ pay practices for unlawful discrimination as compared to traditional review guidelines that have been in place since 2006. Federal contractors and subcontractors should consider making a comprehensive review of their pay practices, policies and processes to determine the extent to which they will survive an OFCCP audit. A self-audit performed under the attorney-client privilege is a prudent and effective means to identify disparate pay practices, even if unintentional, and to address issues before they become the focus of an OFCCP audit.

For more information on Directive 307 and our firm’s OFCCP audit and compliance services, contact Patrick W. McGovern, Esq., or Douglas J. Klein, Esq.,, in our Labor Law Practice Group.

New OFCCP Directive Targets Applicant Screening for Criminal History Record

On January 29, 2013 the Office of Federal Contract Compliance Programs (OFCCP) provided guidance to federal contractors on hiring policies and processes that screen out job applicants who have criminal records. OFCCP’s Directive 306 cautions covered employers that hiring policies that summarily exclude applicants from employment based on a criminal record, without considering such factors as the age and the nature of the offense, may have a disparate, and therefore illegal, impact on racial and ethnic minority job applicants. OFCCP summarizes its current position as follows: “Policies that exclude people from employment based on the mere existence of a criminal history record and that do not take into account the age and nature of an offense, for example, are likely to unjustifiably restrict the employment opportunities of individuals with conviction histories. Due to racial and ethnic disparities in the criminal justice system, such policies are likely to violate federal antidiscrimination law.”

Directive 306 highlights several best practices to avoid liability for discriminating on the basis of an applicant’s criminal record. First, OFCCP suggests that employers not inquire about the applicant’s criminal record at all. But if the employer does inquire, OFCCP suggests that the employer ensures that its applicant screening policies and procedures include an individualized assessment of the applicant’s past criminal conduct and are narrowly drawn to screen out only applicants whose criminal convictions demonstrate unfitness for performing the job or jobs in questions. In other words, before a criminal conviction is considered as disqualifying, the OFCCP Directive cautions that the offense should be related to the job duties for which the applicant is being considered and the employer can articulate a business necessity for disqualifying the applicant.

Federal contractors and subcontractors should review their hiring processes to determine the extent to which they exclude minority applicants from employment based on criminal history, even if unintentionally, and have legal counsel review these policies, and the statistical results of applying them, to ensure compliance with OFCCP requirements.

For more information on Directive 306 and our firm’s OFCCP audit and compliance services, contact Patrick W. McGovern, Esq., or Douglas J. Klein, Esq.,, in our Labor Law Practice Group.

Parties to Interest Arbitrations May be Out of Time on Scope of Negotiations Petitions

The Public Employment Relations Commission (“PERC”) has proposed to readopt, with amendments, N.J.A.C. 19:16, which is the administrative code provision governing Negotiations, Impasse Procedures, and Compulsory Interest Arbitration of Labor Disputes in Public Fire and Police Departments. Specifically, N.J.A.C. 19:16-5.7 deals with scope of negotiations petitions, and the proposed rule would allow arbitrators to take evidence and render decision on whether an issue is outside the scope of mandatorily negotiable subjects, and provides for post-award appeals to PERC so long as the scope petitions were timely filed.

The proposed rule presents a number of problems which were raised by the New Jersey State League of Municipalities and New Jersey Association of Counties during the comment period for the proposed rule, which expired on May 18, 2012. The Employer-Employee Relations Act, and more specifically, N.J.S.A. 34:13A-5.4(d), confers exclusive jurisdiction on PERC to make scope of negotiations determinations, granting it the power “at all times” to make such determinations. Therefore, this abdication of responsibility to an arbitrator, effectuated through rulemaking is impermissible absent amendment of the statute. In addition, the proposed rule does not even provide under what standard PERC will decide scope of negotiations issues on appeal. For example, would PERC be bound to the standard for appeals of interest arbitration awards, or will it invoke the general standard for scope of negotiations issues?

Furthermore, the proposed rule does not amend the time period for filing a scope of negotiations petition, which is 14 days from the filing of a petition for interest arbitration (or 5 days from receipt of the notice of filing the petition). In many scenarios, complying with this timeframe will be highly impractical, if not impossible. By the time an arbitrator gets assigned, sets a date for hearing, and receives final offers from the parties, the 14-day filing period will likely have already passed. Moreover, the situation is further aggravated by the fact that the proposed rule extends the timeframe for submission of final offers from 10 days before hearing to 2 days before hearing. Without the submission of final offers, parties will be unlikely to even know what potential issues will require a scope of negotiations determination, yet face the possibility of waiver by not timely filing a petition.

It remains to be seen whether these issues surfaced by comment to the proposed rule will be addressed in the final promulgation of the rule by PERC.

For further information on this topic, please contact Joseph M. Hannon, Esq., or Brett M. Pugach, Esq.,, in the Labor Law Practice Group.