Layoff Rights in NJ Civil Service

What counts as a layoff

An appointing authority may lay employees off for economy, efficiency or other related reasons (N.J.A.C. 4A:8-1.1(a), N.J.S.A. 11A:8-1). The definitions section draws the line with discipline: a layoff is a separation for those reasons "and not for disciplinary reasons", while a removal is a termination for disciplinary reasons (N.J.A.C. 4A:1-1.3). If the paperwork calls it a layoff but you believe the real reason is something else, that is exactly what a good faith appeal tests, covered below. Removals for cause have their own procedure, set out in the discipline and removal guide.

A demotion for economy or efficiency is treated as a layoff action and carries every protection in the chapter (N.J.A.C. 4A:8-1.1(a)1). So a notice that moves you to a lower title, rather than out the door, still triggers the notice period, the seniority rules and the appeal rights.

One group cannot be laid off at all. No employee on a military leave of absence for active service in the Armed Forces of the United States in time of war or emergency may be subject to a layoff action (N.J.A.C. 4A:8-1.1(c)). The statute extends this to active service in the organized militia, which it defines as the Army and Air National Guard of New Jersey or any other state, including National Guard service ordered by a governor (N.J.S.A. 11A:8-1).

The sequence, start to finish

The rules set out a fixed order of events. Knowing where you are in it tells you which document matters next, and which one starts the appeal clock.

1. Alternatives and pre-layoff actions. The employer tries to reduce the layoff. It should consult the unions before offering alternatives, and must consult them before pre-layoff actions (N.J.A.C. 4A:8-1.2(e), 4A:8-1.3(c)).
2. The plan goes to the Commission. At least 30 days before notices are issued, unless the Chairperson allows another period (N.J.A.C. 4A:8-1.4(a)).
3. You are served notice. At least 45 days before the layoff, stating its date and reason (N.J.A.C. 4A:8-1.6(a), (b)).
4. The Commission determines rights. Seniority and lateral, demotional and special reemployment rights are set for career service titles before the effective date (N.J.A.C. 4A:8-1.1(b)).
5. You receive a final notice of status. It states where you land and includes a statement of appeal rights (N.J.A.C. 4A:8-1.6(f)).
6. The 20-day appeal window runs. Twenty calendar days from receipt of that final notice (N.J.A.C. 4A:8-2.6(b), 4A:1-1.3).

What the employer must try before sending notices

The rules expect an employer to shrink a layoff before it starts. Every appointing authority, State or local, has to lessen the possibility, extent or impact of layoffs through pre-layoff actions such as a temporary hiring or promotion freeze, separating non-permanent employees, returning provisional employees to their permanent titles, reassigning staff and helping people find transfers or other jobs (N.J.A.C. 4A:8-1.3(a), N.J.S.A. 11A:8-2). It must consult the unions representing affected employees before doing any of that (N.J.A.C. 4A:8-1.3(c)).

Within that, employees without permanent status go first. To the extent possible, the employer places them, and then the permanent employees with the least seniority, in the positions being vacated, reclassified or abolished (N.J.A.C. 4A:8-1.3(b)).

Voluntary alternatives come next, and here State and local service part ways. State employers "shall" offer and implement voluntary alternatives as appropriate; local employers "should" consider them (N.J.A.C. 4A:8-1.2(a), (b)). The rule lists unpaid leaves of absence without loss of seniority, voluntary furloughs, voluntarily reduced hours or job sharing, and optional temporary demotional title changes. Taking one is your choice, and if the layoff happens anyway, you are treated as having stayed in your original title and kept earning seniority in it (N.J.A.C. 4A:8-1.2(d)). The employer should consult the affected unions before offering alternatives (N.J.A.C. 4A:8-1.2(e)), and needs the Chairperson's approval of its alternatives plan before putting it in place (N.J.A.C. 4A:8-1.2(f)).

At least 30 days before layoff notices go out, unless the Chairperson allows a different period, the employer must send the Commission the reason for the layoff, the projected effective date, a sample notice, the positions affected and the people in them, the vacant positions it is willing to fill, an account of the alternatives and pre-layoff actions it took or ruled out, and a summary of its union consultations (N.J.A.C. 4A:8-1.4(a)). A local employer with a Commission-approved performance evaluation program also lists permanent employees rated Unsatisfactory or equivalent in their permanent title in the 12 months before the layoff (N.J.A.C. 4A:8-1.4(b)). On the vacancies, the rule reads, as published, that they "shall be filled, except under exceptional circumstances with the approval of the Chairperson or designee, and may only be filled through layoff procedures" (N.J.A.C. 4A:8-1.4(c)). On reviewing the submission, or if it does not arrive on time, the Chairperson may take remedial action, including requiring additional or corrected information, directing alternatives or pre-layoff measures, or directing changes to the notice, including its effective date (N.J.A.C. 4A:8-1.4(d)).

The 45-day notice

A permanent employee, or one serving a working test period, cannot be separated or demoted in a layoff without written notice served at least 45 days before the action (N.J.A.C. 4A:8-1.6(a)). The notice is handed to you personally. Only if you are on a leave of absence or otherwise unavailable may it come by certified mail, and then the 45 days run from the first date the Postal Service notified you as the addressee. The statute fixes the same 45 days for permanent employees (N.J.S.A. 11A:8-1).

The notice must state the effective date and the reason for the layoff (N.J.A.C. 4A:8-1.6(b)). It is also posted conspicuously in every affected facility of the layoff unit, and copies go to the Commission and to the affected unions.

You may get a notice even though your own job is not being cut. People in positions that are not targeted but could be reached by others exercising their bumping rights receive a general written notice, served the same way and on the same 45-day schedule (N.J.A.C. 4A:8-1.6(a)).

This first notice is not the one that starts your appeal clock. That comes later: once the Commission has determined layoff rights, every permanent and probationary employee affected receives a final written notice of status, which has to include a statement of appeal rights (N.J.A.C. 4A:8-1.6(f)).

An employee notified of separation due to layoff must also be told about vacancies in other State departments or agencies (N.J.A.C. 4A:8-1.6(f)1). If you are qualified and your most recent final PAR rating (or equivalent) was Successful or better (a two on a three-level scale or a three on a five-level scale), you have a right to accept one of those appointments instead of separation. Accepting it forfeits the special reemployment rights you would otherwise have had, and you are not placed on a special reemployment list (N.J.A.C. 4A:8-2.3(c)2).

Layoff units and job locations

Two boundaries decide how far your rights reach. The layoff unit is the pool of positions you can be moved into or bumped out of. The job location matters in State service, where it shapes where you can be placed and where you can be recalled.

A different local unit can be requested by the employer or initiated by the Chairperson, before the plan submission deadline (N.J.A.C. 4A:8-1.5(c)). An employer that asks has to tell the unions when it does, and the Chairperson takes written comments for a period of at least 20 days. The Chairperson then approves, modifies or rejects the unit after considering the need for a unit larger than a department, the jurisdiction's structure, the employees, funding and titles involved, the effect on employee layoff rights and the impact on service to the public.

How seniority is counted

Layoff rights are exercised in order of seniority (N.J.A.C. 4A:8-2.2(a)), and the statute says permanent employees are laid off in inverse order of it (N.J.S.A. 11A:8-1). For most titles, seniority is your continuous permanent service in the jurisdiction, whatever titles you held along the way (N.J.A.C. 4A:8-2.4(a)). It is counted in calendar years, months and days, and part-time status or a shorter work week or work year does not reduce it. Permanent service you carried in through an intergovernmental transfer counts. So does service before a resignation and new appointment under N.J.A.C. 4A:4-7.9, which the rule says is not a break.

Police and fire titles are counted differently, in both State and local service. For them, seniority is continuous permanent service only in the current permanent title and in titles that have, or would have had, lateral or demotional rights to it (N.J.A.C. 4A:8-2.4(b)). The statute's definition says titles that have those rights and omits "or would have had" (N.J.S.A. 11A:8-1, subsection b). A police title is any law enforcement rank or title whose entry level requires the Police Training Act course; a fire title is any uniformed fire department rank or title. A police officer's service from before an intergovernmental transfer still counts, unless the officer waived all accumulated sick leave and seniority rights to make the transfer. A county or municipality may adopt an ordinance or resolution letting police and fire titles exercise previously held demotional rights against employees in any layoff unit in the jurisdiction, but it has no effect in a layoff unless adopted at least 90 days before the layoff plan is submitted (N.J.A.C. 4A:8-2.4(b)4).

Several kinds of time away do not come off your total: voluntary furloughs, every leave with pay including sick leave injury, and unpaid leaves for military service, education, a gubernatorial or unclassified appointment, personal sickness, disability, family reasons, a furlough extension or a voluntary alternative to layoff (N.J.A.C. 4A:8-2.4(d)). In State service, Senior Executive Service time counts if you held permanent status before it, and in local service so does leave to hold elective public office.

Other time is deducted: suspensions, other unpaid leaves and any period on layoff (N.J.A.C. 4A:8-2.4(e)). Those deductions reach back only so far, to periods beginning on or after March 1, 1987 in State service and July 1, 1988 in local service.

If you are serving a working test period, your seniority runs from your regular appointment (N.J.A.C. 4A:8-2.4(g)). A permanent employee who is serving a working test period in another title, or a provisional, temporary or interim appointment, keeps accruing seniority in the permanent title.

When two people have the same seniority

Ties are broken by a fixed list, applied in order until one factor separates the employees (N.J.A.C. 4A:8-2.4(h)):

• Veterans preference: a disabled veteran ranks ahead of a veteran, and a veteran ahead of a non-veteran.
• The higher performance rating, but only if everyone tied was rated by the same supervisor on the same PAR scale. A local rating system must be Commission-approved.
• More continuous permanent service in your current permanent title and titles with lateral or demotional rights to it. If you were appointed to a previously held title, all your permanent continuous service in that title is added together (N.J.A.C. 4A:8-2.4(h)3).
• More seniority in the title before a break in service.
• More non-continuous permanent service, regardless of title.
• A higher rank on the same eligible list for the title.
• More continuous provisional, temporary or interim service in the title.
• More total service, regardless of title or status.
• The higher rating in the 12 months before the layoff, then the higher rating in the period between 24 and 12 months before it, with the same same-supervisor and same-scale conditions.
• Any other factor the Chairperson determines.

Police and fire titles use the same list with one swap: the fifth factor becomes greater continuous permanent service regardless of title (N.J.A.C. 4A:8-2.4(b)3). Service before an intergovernmental transfer counts for tie-breaking too, except for firefighters and for law enforcement officers who waived their seniority in the transfer (N.J.A.C. 4A:8-2.4(h)).

Lateral and demotional title rights

The Commission decides which other titles you have a claim to. A lateral title right lets a permanent employee displace someone in the layoff unit holding a title the Chairperson finds the same as or comparable to yours (N.J.A.C. 4A:8-2.1(a)). Under the rule, comparable means substantially similar duties and the same class code, the same or similar education and experience requirements with nothing mandatory beyond your own title's, no special license or certification your title does not also require, and duties you could do with minimal training and orientation because you qualified for your title.

A demotional title right is the same idea one step down: a title lower than yours but related to it, with lower but substantially similar duties and, where it applies, a lower class code (N.J.A.C. 4A:8-2.1(b)). The statute's lateral test differs from the rule's: it names no class code, asks for education and experience requirements that are "identical or similar", and otherwise requires substantially similar duties, the minimal-training standard and no special skills, licenses or registration beyond what the affected title requires (N.J.S.A. 11A:8-1, subsection e). For demotional rights the statute uses the same criteria, except that the lower title has lower but substantially similar duties.

If you are still in your working test period, your lateral right is narrower: you may fill a vacant position or displace a provisional or probationary employee in the same title (N.J.A.C. 4A:8-2.1(a)), and your rights to your probationary title follow only the first four steps of the displacement order below (N.J.A.C. 4A:8-2.2(e)).

Specialized credential variant titles, based on a license or certification, specialized education, client or program experience, or trainee service in a specialty, carry rights based on that credential, provided you were serving in the variant title on or before the layoff plan was submitted (N.J.A.C. 4A:8-2.1(d)).

You can also reach back into your own history. Demotional rights may extend to any title you held permanently within your current continuous service (N.J.A.C. 4A:8-2.2(f)). In that title you can displace only on greater permanent continuous service, unless the person in it is provisional or probationary, who can be displaced regardless. This extended right is not available when you already have lateral options, or demotional options to a title with a higher class code than the old one, in the job locations you chose.

Your union gets reasonable notice of, and may attend, any meeting with an individual employee where layoff rights are discussed (N.J.A.C. 4A:8-2.1(e)).

Whose position you can take, in order

Once your rights are set, and in State service once you have listed your job location preferences, a lateral or demotional right lands on positions in this order (N.J.A.C. 4A:8-2.2(d)):

1. A vacancy. A vacant position the appointing authority has already said it is willing to fill.
2. A provisional with no permanent title. A position held by a provisional employee who has no permanent status in another title. Among several at one job location, the appointing authority picks which.
3. A provisional with a permanent title elsewhere. A position held by a provisional employee who is permanent in another title. Among several, the choice turns on the level of the permanent title held and on seniority.
4. The least senior probationer. The position held by the employee serving a working test period with the least seniority.
5. A permanent employee rated Unsatisfactory. In State service, and in local jurisdictions with a Commission-approved performance evaluation program, the position of a permanent employee whose most recent rating in the permanent title, within the last 12 months, was Unsatisfactory or equivalent.
6. The least senior permanent employee. The position held by the permanent employee with the least seniority, counted under N.J.A.C. 4A:8-2.4.

The statute writes the performance step as two steps: first a permanent employee rated "significantly below standards" or equivalent within the most recent 12 months, then one rated "marginally below standards" or equivalent, before the least senior permanent employee (N.J.S.A. 11A:8-1). The rule uses a single "Unsatisfactory or equivalent" step. Both limit it to State service and to local jurisdictions with a Commission-approved performance evaluation program.

A demotional right works whatever the seniority of the person on the receiving end. The rule says you may exercise it whether you have greater or less seniority than the employee you displace (N.J.A.C. 4A:8-2.2(h)). If you are placed in a trainee title outside the specialized or general title series you were laid off from, you serve a full training period (N.J.A.C. 4A:8-2.2(g)).

Taking a demotional title in a layoff, other than a previously held title, gives you preferred status: you rank above everyone already serving in that lower title for any later layoff (N.J.A.C. 4A:8-2.4(c)). The same applies if you are later reappointed from a special reemployment list to a lower title in the layoff unit you left. Between two people with preferred status, the class code of the title each came down from decides, then seniority in that higher title.

Choices only State employees make

A State employee whose position is affected gets lateral and demotional rights first, if the employee wishes, within the municipality where the facility or office is located, and then in the job locations the employee picks within the department or autonomous agency (N.J.A.C. 4A:8-2.2(b), N.J.S.A. 11A:8-1). You rank the job locations in order of preference and say where you will accept lateral rights and where you will accept demotional rights, and you may restrict the demotional choices by salary range or class code. A local employee does not make these choices; rights are provided within the layoff unit (N.J.A.C. 4A:8-2.2(c)).

The list you submit decides where you can be placed and later recalled, so it carries weight. The special reemployment section below explains how it follows you.

Reassignment limits for 12 months, in State and local service

For 12 months after the layoff notice, no permanent or probationary employee in the layoff unit in a title actually affected by the layoff may be involuntarily moved to a different shift, unless the move is based on a seniority program (N.J.A.C. 4A:8-2.5(a)1). This limit applies in State and local service alike.

Two more limits are State service only. An employee working in the original municipality cannot be involuntarily moved to a different municipality, and one not working there cannot be involuntarily moved to a different job location (N.J.A.C. 4A:8-2.5(a)2, 3).

The Chairperson can allow an exception to any of these for good cause, and the employer has to show specific justification (N.J.A.C. 4A:8-2.5(a), (b)). During the 12 months the unions get notice of voluntary reassignment opportunities, which must also be posted at all work locations for 10 working days (N.J.A.C. 4A:8-2.5(c)).

Special reemployment lists

If you are laid off, demoted or displaced from your job location, you get special reemployment rights based on the permanent title you held at the time (N.J.A.C. 4A:8-2.3(a), N.J.S.A. 11A:8-1). They let you be certified back to the same title and to lateral and lower related titles, decided the same way as your lateral and demotional rights (N.J.A.C. 4A:8-2.1(c)). You also get special reemployment rights to a lateral or demotional title you held before (N.J.A.C. 4A:8-2.3(a)). The special reemployment list is one of the types of eligible list the Commission keeps, covering former and current permanent employees who were laid off, laterally displaced or demoted in lieu of layoff (N.J.A.C. 4A:4-3.1(a)5). The eligible lists guide explains how lists and certifications work in general.

You stay on the list for an unlimited duration (N.J.A.C. 4A:8-2.3(c)). Names are ranked first by the class code or class level of the title you were displaced from, highest first, and then by seniority at the time of layoff, calculated under the method in effect when the list is certified (N.J.A.C. 4A:4-3.2(c), 4A:8-2.3(c)1). Appointments are made in the order certified.

A special reemployment list outranks every other reemployment list, open competitive lists and lateral title changes pending examination across the whole jurisdiction, except those arising from position reclassifications (N.J.A.C. 4A:8-2.3(b)). It also outranks promotional lists in the department or agency where the layoff happened, and it outranks noncompetitive appointments, transfers other than appointments in lieu of separation under N.J.A.C. 4A:8-1.6(f)1, and most lateral title changes (N.J.A.C. 4A:8-2.3(b)2).

A special reemployment list cannot be certified to a different governmental jurisdiction (N.J.A.C. 4A:8-2.1(c)1). In State service the whole of State government is one jurisdiction, so the list's priority runs across all of it (N.J.A.C. 4A:8-2.1(c)1ii, 4A:8-2.3(b)1). In local service an autonomous agency counts as a separate jurisdiction (N.J.A.C. 4A:8-2.1(c)1i).

Where the list reaches depends on what happened to you. If you were displaced by job location but kept your title, or exercised a lateral right, your recall rights are only to your original permanent title and original job location (N.J.A.C. 4A:8-2.3(a)2, 3). If no facility remains there, you choose another job location, and the Chairperson may let you substitute one for good cause on your written request. A State employee displaced from the original municipality may also ask for rights back to that municipality, in addition to the chosen job locations (N.J.A.C. 4A:8-2.3(a)1).

In State service, some refusals do not cost you your place. If you are unavailable because of temporary disability or other good cause, or you decline because the position is on a different shift, or is full time when yours was part time or the other way round, you stay on the list (N.J.A.C. 4A:8-2.3(e)1). That protection sits in the State service subsection. For any list, local ones included, names can be removed on the general grounds that apply to all eligible lists, and refusal to accept appointment is one of them (N.J.A.C. 4A:4-4.7(a)3, 4A:8-2.3(c)3).

If you are reappointed from the list, your service counts as continuous, but the time between the layoff and the reappointment is deducted from your seniority (N.J.A.C. 4A:8-2.4(f)).

Appealing a layoff

There are two kinds of layoff appeal, and you can file one or both (N.J.A.C. 4A:8-2.6(a)). Both are open to permanent employees and to employees serving a working test period. Both are due within 20 calendar days of receiving the final notice of status, and both put the burden of proof on you (N.J.A.C. 4A:8-2.6(b), (c), 4A:1-1.3).

The appeal has to say what determination you are appealing, why, and what relief you want. An appeal missing any of that can be dismissed, though only after you have been told and given a reasonable opportunity to supply it (N.J.A.C. 4A:8-2.6(b)). All Commission appeals are in writing and signed by you or your representative (N.J.A.C. 4A:2-1.1(a)), and you may be represented by an attorney or an authorized union representative (N.J.A.C. 4A:2-1.1(e)).

An appeal that needs the $20 fee and arrives without it is not processed unless the fee, or proof of an exemption, comes in within the time the Commission sets by written notice (N.J.A.C. 4A:2-1.8(d)). The fee is waived for an appellant with established veterans preference, or one who documents receiving General Assistance, Work First New Jersey benefits or Supplemental Security Income (N.J.A.C. 4A:2-1.8(e)).

The two appeals look at different things. A good faith appeal is about the employer's motive for the layoff. A determination of rights appeal is about the arithmetic and the title matching: a seniority date counted wrongly, a deduction that should not have been made, a comparable title left off. Checking your final notice of status against the seniority and title rules above is how an error of the second kind comes to light.

Other workplace rights guides

This guide is one of a set on the rules that govern working for a New Jersey civil service employer. Start at the workplace rights overview for how the different appeal routes fit together.

• Telework in State service

  The two-day limit, the thirteen eligibility criteria, how denials and revocations are decided, and the three ways to challenge one.

• Vacation, sick and family leave

  How much leave you earn, what happens to unused days, sick leave at retirement, family leave, and the State and local split.

• Discipline and removal

  Major and minor discipline, notice and hearing before a penalty, the 20-day appeal and what you recover if you win.

• Pay, steps and overtime

  How steps and anniversary dates work, pay on promotion, demotion and reclassification, overtime categories, comp time and holiday pay.

• The working test period

  How long the probation period lasts, the progress reports, what happens at the end, and the appeal if you are let go.

• Classification appeals

  Out-of-title work, asking for a position review, what reclassification does to pay and status, and the 20-day appeal.

• Certification and removal from a list

  What a certification holds, how the employer disposes of it, the grounds for removing a name, list expiration and revival, and the 20-day appeal.

• Veterans preference

  Who qualifies, how the Adjutant General decides status, and how preference orders open competitive, promotional and noncompetitive appointments and layoffs.