A lawsuit pending in a New Jersey Superior Court seeks review of a township’s decision to dock the plaintiff’s pay by 60 hours, resulting in a loss of about $3,500. O’Hare v. Township of Morris, et al., No. L-000710-16, complaint (N.J. Super. Ct., Morris Co., Mar. 24, 2016). The plaintiff, a police officer, made negative comments about a township official in an email sent to members of the police officers’ union, and he was brought up on disciplinary charges as a result. The plaintiff’s lawsuit alleges that his comments are protected by the First Amendment and laws protecting union activities.
Federal laws and laws in many states protect the rights of workers to form and join organizations, commonly known as unions, for the purpose of collective bargaining with their employers. New Jersey law guarantees the right of most public employees “to form, join and assist any employee organization.” N.J. Rev. Stat. § 34:13A-5.3. The federal National Labor Relations Act (NLRA) extends these rights to many private-sector employees, along with the right to engage in “concerted activities” related to labor organizing. 29 U.S.C. § 157.
The rights protected by the NLRA and similar statutes generally include discussions and other communications among employees regarding negotiations with employers. The First Amendment to the U.S. Constitution extends much broader protections against restriction or retribution by the government based on the content of speech. See, e.g. Sable Commc’ns of Cal. v. Fed. Commc’n Comm’n, 492 U.S. 115, 131 (1989).
The plaintiff in O’Hare is reportedly an 18-year veteran of the police department in Morris Township. He belongs to a union that represents many of the township’s police officers. In June 2014, the union was engaged in contract negotiations with the township, which was offering a wage increase that the plaintiff apparently found unsatisfactory. He has admitted to writing an email message, which he only sent to fellow union members, which included comments regarding the township’s business administrator that were less than kind.
The business administrator received a copy of the plaintiff’s email in an envelope sent anonymously via U.S. mail. The police department initiated a disciplinary proceeding against the plaintiff, with the police chief stating that the email had undermined the department. After a two-day hearing in July 2015, a hearing officer determined that the plaintiff had violated police department regulations and engaged in “conduct unbecoming a police officer.” The police chief asked for a 10-day unpaid suspension, but the hearing officer recommended five days. The Township Committee approved the hearing officer’s recommendation in a 4-0 vote.
The plaintiff’s lawsuit, filed in Superior Court in March 2016, is known under New Jersey law as an “action in lieu of a prerogative writ.” A “prerogative writ” is a court order directing a public official or agency to take a particular action. It is similar to a writ of mandamus, which is considered a less archaic term. The lawsuit alleges that the township’s disciplinary actions against the plaintiff violated his rights to free speech and concerted activity, and that they resulted in financial and emotional harm.
If you need to speak to an attorney about a civil rights matter in New Jersey or New York, contact the Resnick Law Group online, at 973-781-1204, or at (646) 867-7997.
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