April 13, 2009
RE: New Civil Service Rule Regarding Furloughs
On March 25, 2009, the New Jersey Civil Service Commission adopted an emergency rule that provides the State and local authorities that are civil service jurisdictions the ability to implement temporary layoffs, including staggered furloughs, for economy, efficiency or related reasons. The rule allows a temporary layoff to be for the closure of an entire unit for one or more work days or a staggered layoff of each employee in a unit for one or more work days over a defined time period. As the rule states, the temporary layoff “shall be considered a single layoff action even thought the layoff of individual employees takes place on different days during the defined period.” The defined period is designated by the appointing authority in its temporary layoff plan, however, in a staggered layoff, the maximum period to stagger one day off shall not exceed one every forty-five days.
In order to implement a temporary layoff, a temporary layoff plan must be submitted to the Civil Service Commission at least fifteen days prior to the issuance of temporary layoff notices. A temporary layoff plan may be subject to limited exceptions when necessary to protect public health and safety, including child welfare, law enforcement, and care for prisoners, patients and other residents in the care or custody of the State. The temporary layoff plan must describe the implementation of the temporary layoff, including the specific day(s) on which the layoff unit will be closed, any exceptions to the temporary layoff, and if staggered, the reasons for not closing the entire layoff unit, and the staffing plan for implementing a staggered temporary layoff. The rule permits an appointing authority to designate as unpaid temporary layoff time any planned or unplanned leave time taken by an employee during the defined layoff period up to the maximum for that defined layoff period. Under the rule, employees shall not be permitted to substitute any paid leave for an unpaid temporary layoff day. Thus, the new rule preempts the negotiability of certain issues regarding staggered furloughs; however, a public employer will still have to negotiate other severable issues upon demand such as timing and the amounts of payroll deductions.
The temporary measure takes effect immediately and will be in place for sixty (60) days. The Civil Service Commission has also proposed an identical rule that, once formal comment has been received, will extend the furlough program through June 30, 2010. The rule is presently being challenged by a number of State unions including the State PBA and the Communication Workers of America. The Appellate Division is expected to hear oral argument on the unions’ challenge to the new rule on April 16, 2009.
The new emergency rule is only applicable to civil service jurisdictions. Thus, non-civil service jurisdictions still face certain impediments when they seek to implement a staggered furlough. For a non-civil service employer, it is essential to carefully review its collective negotiations agreements and adhere to any applicable contract provisions regarding layoffs and/or bumping rights. Labor agreements usually include bumping rights and require any layoffs to be by seniority. In such cases, a non-civil service employer will generally have difficulty implementing a staggered furlough without violating these contractual provisions.
Accordingly, the non-civil service employer might be faced with a choice of either shutting down entire departments or negotiating with its union to provide for a staggered furlough. If the employer is only able to do a staggered furlough involving the least senior employees on each furlough day, it would greatly reduce the cost-savings associated with such a temporary layoff action. A non-civil service employer might need to institute significantly more furlough days in order to achieve the cost-savings associated with an entire departmental shut down. A review of the collective negotiations agreement will help determine whether a complete departmental shutdown would violate layoff or seniority provisions and would not need to be negotiated. However, in a complete departmental shutdown the non-civil service employer is still required to negotiate severable issues upon demand such as implementation, the dates and amounts of payroll deductions, and the substitution of paid leave days for days lost due to the furlough. Therefore, if a non-civil service employer has a collective negotiations agreement with a union that provides for bumping rights, the institution of a mandatory furlough would likely require a complete departmental shutdown or the negotiation of a staggered furlough with the union.
If you have any questions on this, please contact League Staff Attorney Deborah Kole at 609-695-3481, ext. 137. You should consult your labor attorney and examine your collective bargaining agreements to assure that any applicable specific provisions are satisfied.
Very truly yours,
William G. Dressel, Jr.