Now that Congress has restored the public-safety exception to the federal Age Discrimination in Employment Act, can New Jersey again enforce the statutes that bar people over 35 from being hired as police officers or firefighters and require retirement at age 65?

Plain-English summary

For decades, New Jersey law has barred police and fire departments from hiring anyone over age 35 (N.J.S.A. 40A:14-12, 40A:14-127, 53:1-9) and required uniformed police and firefighters in the Police and Fire Retirement System to retire at age 65 (N.J.S.A. 43:16A-5). Federal age-discrimination law (the ADEA) generally protects workers between 40 and 70, so these state limits collided with federal law from the moment Congress passed the ADEA.

Congress resolved that collision in 1986 by adding 29 U.S.C. § 623(j), a public-safety exemption that let states keep their police and firefighter age limits. That exemption was written with an automatic sunset on December 31, 1993. When it expired, New Jersey suspended enforcement of its hiring and retirement age limits and started hiring police and firefighters over 35.

On September 30, 1996, Congress reenacted the public-safety exemption and made it retroactive to December 31, 1993. The Attorney General concluded that:

1. The state statutes are once again fully enforceable.
2. There is no need for the New Jersey Legislature to reenact them. Once the federal conflict is gone, the dormant state statute revives automatically.
3. Officers and firefighters hired over age 35 between December 31, 1993 and September 30, 1996 cannot now be discharged. They acquired vested tenure protections in reliance on the then-existing federal law and discharging them would be manifestly unfair.
4. People over 35 currently on civil service eligibility lists must not be appointed. Sitting on a list is not a vested right.
5. The mandatory retirement provisions of N.J.S.A. 43:16A-5 must again be enforced. Pensions and Personnel should pick a uniform implementation date with a short administrative runway (two or three months) to give affected employees time to plan.

What this means for you

If you are a police or fire chief, or a municipal HR director

Effective immediately on the implementation date set by the Department of Personnel and Division of Pensions:

• Stop appointing anyone over 35 to a sworn law enforcement or firefighter position, even if they are next on the civil service list. Eligibility-list candidates over 35 do not have a vested right to appointment (In re Crowley; Schroeder v. Kiss).
• Do not discharge anyone you lawfully hired between December 31, 1993 and September 30, 1996 who was over 35 at hire. They acquired tenure under the law as it then stood. Federal due process protects them (Board of Regents v. Roth; Battaglia v. Union Cty. Welfare Bd.) and the New Jersey Civil Service Act bars dismissal absent good-cause discipline or layoff (N.J.S.A. 11A:2-6).
• Begin the retirement processing for officers and firefighters who have reached the mandatory retirement age under N.J.S.A. 43:16A-5. The Attorney General authorized a short, uniform administrative runway, but the retirements are required.

If you are a police officer or firefighter approaching age 65

If you joined or expected to remain in service past 65 during the 1993-1996 lapse, the lapse did not create a vested right to do so. The opinion is explicit that "the terms and conditions of public service in office or employment rest in legislative policy rather than contractual obligation, and hence may be changed." There is no "grandfathering" of members who joined during the gap to let them serve a full 25 years regardless of age. If you have planning concerns, talk with the Division of Pensions and Benefits about the effective implementation date and your projected retirement benefit.

If you are a candidate over 35 on a current police or firefighter eligibility list

You cannot be appointed once enforcement resumes. The age cutoff is computed as of the announced closing date of the civil service exam. Eligibility lists earned during the federal lapse do not vest you with a right to appointment.

If you are an officer or firefighter hired over age 35 during the lapse

Your job is safe under this opinion. The Attorney General concluded that retroactive application of the statute to require your discharge would be manifestly unfair given your reliance on the prior federal law (Gibbons v. Gibbons; Phillips v. Curiale). You completed your working test period and acquired civil service tenure under N.J.S.A. 11A:4-13(a). You can only be removed for good-cause discipline or a layoff under N.J.S.A. 11A:2-6.

If you are an employment attorney or union counsel

The opinion's most useful precedential thread is the principle from General Electric Co. v. Packard Bamberger that a state statute preempted by federal law is "merely unenforceable or suspended" and revives automatically when the conflict ends, with no need for legislative reenactment. The retroactivity analysis under Twiss and Gibbons v. Gibbons is the standard framework: presumption of prospective application unless legislative directive, and even then only absent manifest injustice.

The State Police mandatory retirement at 55 (N.J.S.A. 53:1-12) was already enforceable throughout this period as a bona fide occupational qualification, per E.E.O.C. v. State of New Jersey, 631 F. Supp. 1506 (D.N.J. 1986). The 1996 federal restoration also requires NIOSH to issue regulations within four years identifying valid nondiscriminatory job performance tests for retirement decisions, but until those regulations exist, the statutory mandatory retirement ages apply directly.

Common questions

Q: When does the new (or rather, restored) age cap take effect for hiring?
A: As soon as the Department of Personnel and Division of Pensions implement it. The Attorney General recommended a short uniform runway of two or three months for administrative coordination.

Q: I was hired at age 38 as a firefighter in 1995. Will I be fired now?
A: No. The opinion is explicit that lawful hires made during the federal lapse cannot be discharged. The reliance and tenure interests are too strong.

Q: I am 36 and on a current police eligibility list. Can I still be appointed?
A: No. The maximum hiring age is calculated as of the announced closing date of the civil service exam. If you were over 35 on that closing date, you are ineligible. Sitting on a list does not create a vested right to appointment.

Q: I am a police officer who turned 65 last year. Will I have to retire?
A: Yes, on the implementation date set by Pensions and Personnel. There is no constitutional right to remain in service past the mandatory retirement age, and the Attorney General rejected any blanket grandfathering of members hired during the lapse.

Q: Did the New Jersey Legislature have to pass new statutes to make this work?
A: No. Under General Electric Co. v. Packard Bamberger & Co., 14 N.J. 209 (1953), a state statute that was preempted by federal law revives automatically when the federal conflict ends. The original New Jersey hiring caps and retirement age statutes were never repealed; they were only suspended.

Q: Why does the State Police retirement age (55) work differently from local police and firefighters (65)?
A: The State Police mandatory retirement at 55 was found to be a bona fide occupational qualification (BFOQ) by the federal court in E.E.O.C. v. State of New Jersey, so it remained enforceable even when the federal exemption was lapsed. The local police and firefighter age 65 retirement under N.J.S.A. 43:16A-5 depended on the public-safety exemption to be enforceable.

Q: What happens after NIOSH issues the validated job performance tests?
A: The 1996 federal restoration requires NIOSH to develop nondiscriminatory job performance tests within four years. Once those exist, employers may rely on them as an alternative to age cutoffs. Until then, the statutory mandatory retirement ages remain in effect.

Background and statutory framework

The federal Age Discrimination in Employment Act (29 U.S.C. § 621 et seq.) was enacted in 1967 to prohibit age discrimination in employment for workers between 40 and 70. New Jersey, like many states, had long-standing statutes setting maximum hiring ages for police and firefighters at 35 and mandatory retirement ages at 65 for the Police and Fire Retirement System. After the ADEA was amended to apply to state and local governments, the New Jersey Attorney General concluded in Formal Opinions 1-1984 and 5-1983 that the state hiring caps and retirement ages conflicted with the ADEA and were unenforceable absent BFOQ proof.

In 1986, Congress enacted the public-safety exemption at 29 U.S.C. § 623(j), letting states enforce maximum hiring ages and mandatory retirement ages for police and firefighters that were in effect on March 3, 1983. That exemption included an automatic sunset on December 31, 1993. The Attorney General accordingly advised in 1987 that the state caps could be enforced (Opinion 87-0012), and then in 1994 that they could not (Opinion 94-0072).

For nearly three years (December 31, 1993 to September 30, 1996), New Jersey police and fire departments hired over 35-year-olds and could not force retirement at 65. On September 30, 1996, Congress reenacted the public-safety exemption and made it retroactive to December 31, 1993. The retroactivity is what created the doctrinal puzzle this opinion resolves: did persons lawfully hired during the lapse have to be discharged, and could those who had crossed the mandatory retirement age be forced out immediately? The Attorney General's answers (no to discharges of incumbents, yes to enforcement going forward, with a short administrative runway) balance the reliance interests of individual officers and firefighters against the legislative judgment embedded in the public-safety exemption.

The opinion's reliance on General Electric Co. v. Packard Bamberger & Co. is doctrinally important: it confirms that preempted state statutes are not destroyed but suspended, and they revive automatically when the federal conflict ends. That principle has wide application beyond age-discrimination law, including in fields like hazardous waste regulation, securities, and labor relations where federal law moves around state statutes.

Citations and references

Statutes:
- 29 U.S.C. § 621 et seq. (ADEA)
- 29 U.S.C. § 623(j) (public-safety exemption)
- 29 U.S.C. § 631(a) (ADEA coverage 40-70)
- N.J.S.A. 40A:14-12 (firefighter hiring age cap)
- N.J.S.A. 40A:14-127 (police hiring age cap)
- N.J.S.A. 53:1-9 (State Police hiring age cap)
- N.J.S.A. 43:16A-5 (Police and Fire Retirement System mandatory retirement age)
- N.J.S.A. 11A:1-1 et seq. (Civil Service Act)
- N.J.S.A. 11A:2-6 (career service termination protections)
- N.J.S.A. 11A:4-13(a) (working test period and tenure)
- N.J.A.C. 4A:2-2.3 (termination procedures)

Cases:
- General Electric Co. v. Packard Bamberger & Co., 14 N.J. 209 (1953), preempted state statute is suspended, not destroyed; revives when federal conflict ends
- E.E.O.C. v. State of New Jersey, 631 F. Supp. 1506 (D.N.J. 1986), State Police age 55 mandatory retirement is a BFOQ
- Phillips v. Curiale, 128 N.J. 608 (1992), retroactive statute analysis
- State Department of Environmental Protection v. Ventron Corp., 94 N.J. 473 (1983), same
- Twiss v. State Dept. of Treasury, 124 N.J. 461 (1991), manifest injustice limit on retroactivity
- Gibbons v. Gibbons, 86 N.J. 515 (1981), manifest injustice standard
- Board of Regents v. Roth, 408 U.S. 564 (1972), public employment with statutory tenure is a vested property right
- Battaglia v. Union Cty. Welfare Bd., 88 N.J. 48 (1982), same
- In re Crowley, 193 N.J. Super. 197 (App. Div. 1984), eligibility-list placement is not a vested right
- Schroeder v. Kiss, 74 N.J. Super. 229 (App. Div. 1962), same
- In re Jamesburg High School Closing, 83 N.J. 540 (1980), plain language of statute should be followed
- Spina v. Consolidated Police Pension Fund Com., 41 N.J. 391 (1964), public employment terms rest in legislative policy, not contract

Source

• Original PDF: https://www.nj.gov/oag/oag/ag%20opinion%201997-1.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

State of New Jersey
DEPARTMENT OF LAW AND PUBLIC SAFETY
OFFICE OF THE ATTORNEY GENERAL

CHRISTINE TODD WHITMAN, Governor
PETER VERNIERO, Attorney General
CN 080, Trenton, NJ 08625-0080
(609) 292-4925

February 25, 1997

Margaret M. McMahon, Director
Division of Pensions & Benefits
50 West State Street
CN 295
Trenton, New Jersey 08625

Janet Share Zatz
Chief of Staff
Department of Personnel
CN 312
3 Station Plaza
Trenton, New Jersey 08625

Re: FORMAL OPINION NO. 1 - 1997

Dear Chief of Staff Zatz and Director McMahon:

Recent Congressional action amending the Age Discrimination In Employment Act has raised a question regarding the current status of State laws which impose mandatory maximum hiring and retirement ages for law enforcement and firefighting personnel. These include N.J.S.A. 40A:14-12 which precludes the hiring as a firefighter of anyone who is over 35 years of age, and N.J.S.A. 40A:14-127, which is a parallel provision relating to law enforcement officers. Also implicated is N.J.S.A. 53:1-9, which establishes a maximum hiring age for State Police members at age 35, as well as N.J.S.A. 43:16A-5 which sets the mandatory retirement age for the Police and Fire pension system at age 65. For the reasons set forth below, you are advised that those State laws which impose maximum hiring and mandatory retirement ages for police officers and firefighter positions must again be enforced.

[Footnote: Both laws permit the age cut-off for eligibility to be determined as of the "announced closing date of a civil service examination" given for the position. Accordingly, an individual who is under 35 years of age at the announced closing date for a civil service test is considered to have met the age requirement for the life of any eligible list thereafter promulgated for the position.]

This issue arises by virtue of the automatic repeal on December 31, 1993, and subsequent reenactment, on September 30, 1996, of amendments to the "Age Discrimination in Employment Act" (hereinafter ADEA), 29 U.S.C. § 623 et seq. Those amendments carved out an exception to the age discrimination prohibition contained in the ADEA for firefighters and law enforcement personnel. A short review of the history of those amendments is warranted and will facilitate a proper interpretation and understanding of their effect upon and interaction with State law.

The ADEA prohibits discrimination in the hiring or discharge of employees based upon age. 29 U.S.C. § 621 et seq. The prohibition against age discrimination contained in the law applies to individuals "who are at least 40 years of age but less than 70 years of age." 29 U.S.C. § 631(a).

In Formal Opinion No. 1 (1984) this Office concluded that the ADEA prohibition against individuals over 40 years of age had to be read in conjunction with State laws prohibiting the hiring of anyone older than 35 for law enforcement and firefighter positions. Therefore, that opinion concluded that those laws which prohibited the hiring of individuals over the age of 35 were similarly invalid and unenforceable under the ADEA. Similarly, in Formal Opinion No. 5 (1983), the Attorney General advised that the provisions of the State pension statutes which required mandatory retirement prior to age 70 for uniformed police officers and firefighters were invalid and unenforceable as well, absent demonstrable evidence that such mandatory retirement ages were valid BFOQs.

[Footnote: The U.S. District Court for the District of New Jersey has held that the age 55 mandatory retirement requirement contained in the statutes governing the State Police Retirement System is a BFOQ and therefore enforceable. E.E.O.C. v. State of New Jersey, 631 F. Supp. 1506 (D.N.J. 1986). Accordingly, the State Police have continued to enforce mandatory retirement at age 55.]

Congress enacted the original amendments to the ADEA at issue here in 1986, which were codified at 29 U.S.C. § 623(j). They permitted states to enforce any maximum hiring age and mandatory retirement age provisions for law enforcement personnel and firefighters contained in State law which was in effect as of March 3, 1983. Accordingly, on February 11, 1987 this Office issued Attorney General Opinion No. 87-0012, which advised both the Department of Personnel and the Division of Pensions that any State laws providing for maximum hiring ages and mandatory retirement ages were to be enforced.

On December 31, 1993, these amendments to the ADEA which permitted the enforcement of such State laws were automatically repealed by virtue of express language contained in the original amendments themselves. 29 U.S.C. § 623(j). At that time Congress took no definitive action to reenact those amendments. Accordingly both the Department of Personnel and the Division of Pensions were advised that enforcement of any State statutes containing maximum hiring ages or mandatory retirement ages was to be immediately suspended. See Attorney General Opinion 94-0072 (May 17, 1994).

Thereafter, on September 30, 1996, Congress again enacted amendments to the ADEA specifically repealing the "automatic repealer" provision of the prior amendments and restoring the "public safety exemption" to the ADEA. This "repeal of the automatic repealer" of the amendments was made retroactive to December 31, 1993. The practical effect of the "repeal of the repealer" is that the State statutory provisions providing for mandatory retirement ages and maximum age hiring cut-offs are now again enforceable. Accordingly, all necessary steps should be taken as quickly as reasonably possible to implement these age-based employment statutory provisions.

As set forth above, the amendments have been made retroactive to December 31, 1993. Thus, all hiring and discharge decisions made by appointing authorities during the period between December 31, 1993 and September 30, 1996 are arguably affected by this change in the law. With regard to the statutorily-imposed age limitations upon hiring however, such limitations need not be read to require the discharge of any individual who was hired after December 31, 1993 and was over the age of 35 at the time of hire, as set forth in both N.J.S.A. 40A:14-12 and N.J.S.A. 40A:14-127.

It is the balance of these individuals' interest in their employment against the competing public interest, coupled with the need to read all statutes fairly and reasonably, which compels this conclusion. The courts decline to apply statutes retroactively where to do so would result in depriving individuals of a vested right or would otherwise be manifestly unfair. Prospective application of statutes is favored, although a clear indication by the Legislature that a statute is meant to be applied retroactively will generally be given effect. Phillips v. Curiale, 128 N.J. 608 (1992); State Department of Environmental Protection v. Ventron Corp., 94 N.J. 473 (1983). Thus, courts will apply statutes retroactively, given a legislative directive to do so, unless such application would result in manifest injustice to the adversely affected parties. Twiss v. State Dept. of Treasury, 124 N.J. 461 (1991). Manifest injustice may be shown if an affected party can demonstrate that he relied upon the prior law to his prejudice and the "consequences of such reliance are so deleterious and irrevocable that it would be unfair to apply the statute retroactively." Gibbons v. Gibbons, 86 N.J. 515 (1981).

Here, persons over the age of 35 were lawfully hired between the period December 31, 1993 through September 30, 1996. It would be manifestly unfair to discharge such individuals who relied upon the prior law in accepting employment. In this regard it should be noted that tenure in continued public employment, guaranteed by statute, is a vested right subject to the protection of the United States Constitution. Board of Regents v. Roth, 408 U.S. 564, 576-577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Battaglia v. Union Cty. Welfare Bd., 88 N.J. 48 (1982), cert. denied, 456 U.S. 965 (1982). The New Jersey Civil Service Act, N.J.S.A. 11A:1-1 et seq., protects the right to employment held by civil servants with career service status by insulating them from termination except for good cause disciplinary reasons or a layoff. N.J.S.A. 11A:2-6, N.J.A.C. 4A:2-2.3. Employees appointed to career service titles gain such tenure upon completion of a working test period. N.J.S.A. 11A:4-13(a). Accordingly, those individuals over the age of 35 who were lawfully hired need not be discharged.

By contrast, those individuals who were over 35 years of age at the announced closing date for any civil service examination and whose names now appear on any outstanding eligible lists for law enforcement or firefighter positions should not be appointed to any available positions, consistent with the maximum hiring age restrictions contained at N.J.S.A. 40A:14-12 and N.J.S.A. 40A:14-127. The individuals whose names merely appear on a list do not have a vested right to appointment. In re Crowley, 193 N.J. Super. 197 (App. Div. 1984); Schroeder v. Kiss, 74 N.J. Super. 229 (App. Div. 1962). Accordingly, the direction contained in the plain language of the State statutes rendering these individuals ineligible for appointment and prohibiting such appointments should be followed. In re Jamesburg High School Closing, 83 N.J. 540, 547 (1980). Likewise, those individuals over 35 waiting for employment in non-civil service municipalities would not be entitled to appointment and would be precluded from employment due to age.

Additionally, the provisions of N.J.S.A. 43:16A-5 imposing mandatory retirement based upon age for law enforcement and firefighting personnel should similarly be enforced. Thus, any individual who has reached the mandatory retirement age contained in those statutes should now be retired. Significantly, these amendments, unlike the prior amendments, contain a requirement that within a period of not less than four years from September 30, 1996, the Director of the National Institute for Occupational Safety and Health must issue regulations identifying valid, nondiscriminatory job performance tests which are to be used by employers who seek to retire firefighters and law enforcement personnel based upon age. At this juncture, however, it is the advice of this Office that, in the absence of such regulations, the statutory provisions which provide for mandatory retirement should be enforced until such time as the test process envisioned in the amendments is implemented.

We are fully aware of the problems associated with immediately implementing the mandatory retirement provisions of this Act. Given the fact that the Act lapsed several years ago, the impact of this mandatory retirement could force individuals who have not yet contemplated retirement into an immediate life change. As such, it would be practical to provide an appropriate time period (at least two or three months) to complete the necessary administrative steps to enforce the mandatory retirement provisions. However, it is important to establish a uniform date for enforcement of the mandatory retirement and maximum hiring age provisions. This date should consider the practical problems associated with the retirement application process, taking into consideration the needs and concerns of the retirees, the municipalities and the Division of Pensions and Benefits.

A potential concern of those covered by the Police and Fire Retirement System is "grandfathering" those individuals who have become members of the system through their employment during the period when there was not a mandatory hiring age. The issue is whether to allow them to serve a minimum of 25 years, regardless of age, in order to be eligible for a retirement benefit. This is not consistent with the law. The terms and conditions of public service in office or employment rest in legislative policy rather than contractual obligation, and hence may be changed. See Spina v. Consolidated Police, etc. Pension Fund Com., 41 N.J. 391 (1964). The law clearly states that a mandatory retirement age must be enforced. As there is no constitutional right to benefit entitlement in the various retirement systems, this "grandfathering" would not be permissible by law. N.J.S.A. 43:16A-5.

As you have previously been advised, there is no requirement to reenact the State statutes regarding mandatory retirement or hiring. The New Jersey Supreme Court has held that "[w]here a state statute is . . . invalid because it is in conflict with federal legislation, the state statute is in effect merely unenforceable or suspended by the existence of the federal legislation." General Electric Co. v. Packard Bamberger & Co., 14 N.J. 209, 218 (1953). However, once the federal statute with which the State statute conflicted is repealed, or when Congress affirmatively acts to remove the conflict, the State statute will be deemed reinstated or revived without the need for "an express reenactment by the state legislature." Id. at 219. The State statutes which exist as to mandatory hiring and retirement for law enforcement personnel may be enforced as a matter of federal law. As a result, they must be enforced as a matter of State law.

In summary, you are advised that as a result of amendments to the ADEA contained in 29 U.S.C. § 623(j), your agencies must once again enforce those statutory provisions which permit the imposition of statutory mandatory retirement and maximum hiring age thresholds for law enforcement personnel and firefighters.

Sincerely yours,

PETER VERNIERO
Attorney General of New Jersey