 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Viviani v. Rogough of Bogota2/25/2002
difference between abolishing a position and terminating services, that does not end the inquiry. It is only the starting point, for this decision will have substantial precedential consequences. I agree with my dissenting colleague that this holding may lead to mischief. Mischief will beget manipulation if we permit governing bodies to legitimize the termination of a firefighter by invoking either "economy reasons" or "other good faith reasons" - a catch-all that opens the door to abuse. In essence, we have facilitated the ability of municipalities to terminate services pretextually under the guise of the "abolition of a position."
It is no answer that pretextual discharges can be tested in the crucible of trial. Apart from its costs, the more unsettling problem is that litigation may become a futile exercise that will be unsuccessful in all but a few cases. I recognize that courts are capable of determining whether bad faith exists. See Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 419 (1997). But before a court finds it, a plaintiff has to prove it. Although I do not doubt the good faith of the Borough in this case, I am concerned about the potential for future misuse by governing bodies. All a municipality need do is pass an ordinance invoking "economy reasons" or other "good faith" reasons in a "Whereas" clause, and the ordinance almost certainly will pass muster. General welfare ordinances will enable municipalities to transform rationalizations into reasons. Any reason, with citation to a ledger or a lawyer, will suffice. Any one of a myriad of concerns, real or feigned, that face a municipality every day may provide an excuse. Although the field abounds with "how-to" manuals, it takes little imagination to manufacture a need.
If and when litigation ensues, the municipality need only invoke the talisman of "good faith." The plaintiff's claim is then likely to evanesce, for the plaintiff faces the almost insurmountable task of demonstrating otherwise. Direct evidence of bad faith is seldom discovered before or during litigation; circumstantial evidence of bad faith sufficient to overcome the employer's portrayal of good faith is almost as rare. These observations are not speculative or conclusory. Lullo v. International Ass'n of Fire Fighters, 55 N.J. 409, 424 (1970), Galloway Township Board of Education v. Galloway Township Ass'n of Education Secretaries, 78 N.J. 1, 9 (1970), and In re Bridgewater Township, 95 N.J. 235, 240-41 (1984), counsel our courts to turn to the federal labor law experience for guidance. When considering the "actual motive" for a discharge, "it is seldom that direct evidence will be available that is not also self-serving." Shattuck Penn Mining Corp. v. N.L.R.B., 362 F.2d 466, 470 (9th Cir. 1966). Further, "direct evidence is seldom attainable when seeking to probe an employer's mind to determine the motivating cause of his actions." N.L.R.B. v. Bird Mach. Co., 161 F.2d 589, 592 (1st Cir. 1947). It follows then, as the National Labor Relations Board observed in a seminal decision on motivation, that "such matters of motive cannot in the nature of things be proved other than circumstantially." Universal Camera Corp., 79 N.L.R.B. 379, 386 n.2 (1948) (citing Bird Mach. Co., supra, 161 F.2d 592), vacated on o.g., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The exempt firefighter will overcome those difficult odds only in the unique situation when he or she finds the elusive clue, either a memorandum that incriminates or a supervisor who inculpates. Experience demonstrates that disproving good faith or rebutting a pretext, particularly one mapped out on paper, is an herculean task, and in my view an unreasonable one.
Beyond this is the spectre of
Page 1 2 3 4 5 New Jersey Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|