Current through Register Vol. 57, No. 6, March 17, 2025
(a) Where a
disciplinary penalty has been reversed, the Commission shall award back pay,
benefits, seniority or restitution of a fine. Such items may be awarded when a
disciplinary penalty is modified.
(b) Where a municipal police officer has been
suspended based on a pending criminal complaint or indictment, following
disposition of the charges the officer shall receive back pay, benefits and
seniority pursuant to
N.J.S.A.
40A:14-149.1 et seq.
(c) Where an employee, other than a municipal
police officer, has been suspended based on a pending criminal complaint or
indictment, following disposition of the charges the employee shall receive
back pay, benefits and seniority if the employee is found not guilty at trial,
the complaint or indictment is dismissed, or the prosecution is terminated.
1. Such items shall not be awarded when the
complaint or indictment is disposed of through Conditional Discharge,
N.J.S.A.
2C:36A-1, or Pre-Trial Intervention (PTI),
N.J.S.A.
2C:43-12 et seq.
2. Where disciplinary action has been taken
following disposition of the complaint or indictment, such items shall not be
awarded in case of removal. In case of suspension, where the employee has
already been suspended for more than six months pending disposition of the
complaint or indictment, the disciplinary suspension shall be applied against
the period of indefinite suspension. The employee shall receive back pay for
the period of suspension beyond six months, but the appointing authority may
for good cause deny back pay for the period beyond the disciplinary suspension
up to a maximum of six months.
(d) Back pay shall include unpaid salary,
including regular wages, overlap shift time, increments and across-the-board
adjustments. Benefits shall include vacation and sick leave credits and
additional amounts expended by the employee to maintain his or her health
insurance coverage during the period of improper suspension or removal.
1. Back pay shall not include items such as
overtime pay, holiday premium pay and retroactive clothing, uniform or
equipment allowances for periods in which the employee was not
working.
2. The award of back pay
shall be reduced by the amount of taxes, social security payments, dues,
pension payments, and any other sums normally withheld.
3. Where a removal or suspension has been
reversed or modified, an indefinite suspension pending the disposition of
criminal charges has been reversed, the award of back pay shall be reduced by
the amount of money that was actually earned during the period of separation,
including any unemployment insurance benefits received, subject to any
applicable limitations set forth in (d)4 below.
4. Where a removal or a suspension for more
than 30 working days has been reversed or modified or an indefinite suspension
pending the disposition of criminal charges has been reversed, and the employee
has been unemployed or underemployed for all or a part of the period of
separation, and the employee has failed to make reasonable efforts to find
suitable employment during the period of separation, the employee shall not be
eligible for back pay for any period during which the employee failed to make
such reasonable efforts.
i. "Underemployed"
shall mean employment during a period of separation from the employee's public
employment that does not constitute suitable employment.
ii. "Reasonable efforts" may include, but not
be limited to, reviewing classified advertisements in newspapers or trade
publications; reviewing Internet or on-line job listings or services; applying
for suitable positions; attending job fairs; visiting employment agencies;
networking with other people; and distributing resumes.
iii. "Suitable employment" or "suitable
position" shall mean employment that is comparable to the employee's permanent
career service position with respect to job duties, responsibilities,
functions, location, and salary.
iv. The determination as to whether the
employee has made reasonable efforts to find suitable employment shall be based
upon the totality of the circumstances, including, but not limited to, the
nature of the disciplinary action taken against the employee; the nature of the
employee's public employment; the employee's skills, education, and experience;
the job market; the existence of advertised, suitable employment opportunities;
the manner in which the type of employment involved is commonly sought; and any
other circumstances deemed relevant based upon the particular facts of the
matter.
v. The burden of proof
shall be on the employer to establish that the employee has not made reasonable
efforts to find suitable employment.
5. An employee shall not be required to
mitigate back pay for any period between the issue date of a Civil Service
Commission decision reversing or modifying a removal or reversing an indefinite
suspension and the date of actual reinstatement. The award of back pay for this
time period shall be reduced only by the amount of money that was actually
earned during that period, including any unemployment insurance benefits
received.
6. Should a Civil Service
Commission decision reversing or modifying a removal or reversing an indefinite
suspension subsequently be stayed, an individual shall be required to mitigate
an award of back pay from the date of the stay through the date of actual
reinstatement, in accordance with (d)4i through v above.
7. If an employee also held other employment
at the time of the adverse action, the back pay award shall not be reduced by
earnings from such other employment. However, if the employee increased his or
her work hours at the other employment during the back pay period, the back pay
award shall be reduced by the earnings from such additional hours.
8. A back pay award is subject to reduction
by any period of unreasonable delay of the appeal proceedings directly
attributable to the employee. Delays caused by an employee's representative may
not be considered in reducing the award of back pay.
9. A back pay award is subject to reduction
for any period of time during which the employee was disabled from
working.
10. Funds that must be
repaid by the employee shall not be considered when calculating back
pay.
(e) Unless
otherwise ordered, an award of back pay, benefits and seniority shall be
calculated from the effective date of the appointing authority's improper
action to the date of the employee's actual reinstatement to the
payroll.
(f) When the Commission
awards back pay and benefits, determination of the actual amounts shall be
settled by the parties whenever possible.
(g) If settlement on an amount cannot be
reached, either party may request, in writing, Commission review of the
outstanding issue. In a Commission review:
1.
The appointing authority shall submit information on the salary the employee
was earning at the time of the adverse action, plus increments and
across-the-board adjustments that the employee would have received during the
separation period; and
2. The
employee shall submit an affidavit setting forth all income received during the
separation.
(h) See
N.J.A.C.
4A:2-2.1 3 for situations in which certain
law enforcement officers or firefighters have appealed a removal that has been
reversed or modified.
