TEMPORARY LAYOFF GUIDELINES FOR LOCAL APPOINTING AUTHORITIES
On August 5th, 2009, in response to the joint request of the State’s Office of Employee Relations and three of the unions representing State employees, the Civil Service Commission voted to propose the repeal of N.J.A.C. 4A:8-1.1A and to stay that rule pending its eventual repeal. This rule, adopted on an emergency basis on March 25, 2009 and as a regular rule on May 13, 2009, was created to provide greater flexibility to appointing authorities with respect to temporary layoffs.
Several jurisdictions have already begun implementation of temporary layoff plans, and a number of others have indicated that they are contemplating the same. Therefore, the Civil Service Commission (CSC) is issuing the following guidelines outlining the impact that the rule repeal will have on local Civil Service jurisdictions.
Implications for Local Civil Service Jurisdictions
The Commission’s decision to stay N.J.A.C. 4A:8-1.1A and initiate the rule repeal process does not eliminate an appointing authority’s ability to implement temporary layoffs. The authority to temporarily close an entire layoff unit (i.e., department or agency) preceded and exists independently of the rule that the Commission is repealing. The Appellate Division of the Superior Court affirmed this principle in a 1994 decision upholding the Department of Personnel’s right to conduct a temporary layoff by ceasing operations on designated days. According to the Court, “a layoff can encompass a temporary cessation of the employer’s operations or a temporary suspension of employment.” The decision specifically states that layoffs can be either permanent or temporary in nature.
The right of appointing authorities to conduct temporary layoffs was reaffirmed by the Appellate Division in an opinion issued April 17, 2009. In this case, the Court states that “a decision to lay off all employees in a layoff unit, even on a temporary basis, must be considered a managerial prerogative.”
In short, as long as they are accomplished through the complete closure of entire layoff units (i.e., departments or agencies) in accordance with N.J.A.C. 4A:8-1 et seq., temporary layoffs are permissible under Civil Service law.
What has changed as a result of the Commission’s decision is employers’ ability to institute temporary layoffs that do not provide for the closure of entire layoff units. Under N.J.A.C. 4A:8-1.1A, employers were permitted to exempt from temporary layoff those employees whose presence was necessary to maintain public health and safety. In granting appointing authorities this ability, departments such as Police and Fire could achieve some measure of savings through the temporary layoff of employees in civilian titles without impact to public welfare.
Effective August 5, 2009, temporary layoffs are once again only applicable across entire departments. Under no circumstances can an employee in a department subject to temporary layoffs be suffered or permitted to work. In a department targeted for temporary layoffs, exemptions for certain employees or staggered layoffs are not allowed. Departments that cannot shut down entirely cannot be targeted in a temporary layoff plan.
Guidelines for Submitting New or Revised Temporary Layoff Plans
Appointing authorities that have already submitted and received CSC approval for a temporary layoff plan that provides for the complete closure of entire departments or agencies will not be affected by the stay and proposed repeal of N.J.A.C. 4A:8-1.1A. Jurisdictions in this category may proceed with implementation of approved temporary layoff plans.
Appointing authorities whose previously approved plans included exemptions or called for “partial” or “staggered” temporary layoffs within a department/agency must submit a revised temporary layoff plan. Jurisdictions whose plans require revision will receive a separate notice to that effect.
All temporary layoff plans must be prepared in accordance with the provisions of N.J.A.C. 4A:8-1 et seq., and must include the following information:
- The reason for the layoff;
- The projected effective date(s) of the layoff;
- A sample of the 45 day notification of temporary layoff that will be issued to employees in each affected Department;
- A description of alternatives to temporary layoff that have been undertaken by the authority;
- A list of all affected negotiations representatives, including addresses and the units they represent; and
- A summary of consultations with affected negotiations representatives.
As is the case in a permanent layoff situation, the implementation of a temporary layoff plan is contingent upon CSC approval.