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Counting “Replacement” Time Toward Acquisition of Tenure

spiral books.jpgMcLaughlin & Nardi, LLC’s employment attorneys represent teachers in all aspect of employment law. One of the most important areas of New Jersey employment law to teachers is the requirements for acquiring tenure.

Under the TEACHNJ ACT of 2012, acquisition of tenure went from three years to four years. There are several ways to meet this requirement. First, a teacher can work in her position for four full consecutive calendar years. Second, the teacher can serve for four consecutive school years, and begin employment in the following year; the common way this is expressed is “four school years plus a day.” Third, a teacher can attain tenure if her total time worked equals greater than four school years within any five consecutive school years. This final method allows a teacher to take time off to care for a baby without having to re start her tenure clock from day one.

However, there is an exception that provides that certain “time” does not count. New Jersey’s education laws provides that someone who is replacing another employee while that employee is out on a leave of absence, or period of disability or disqualification – a frequent example being a teacher who is hired to replace another teacher out on maternity leave – cannot use that replacement time to count for the acquisition of tenure. This is relatively straightforward in the case, for example, of someone who comes in to replaces a teacher who is out on maternity leave, and then loses her job when the first teacher returns. However, what about someone who is hired to replace a teacher on maternity leave, but then gets another teacher position and stays when mom returns to work? Can she count her original time because she is a permanent employee and her time was continuous, even if the initial time was served as a replacement? This is a far more difficult question for which until recently the courts had not spoken.

However, recently the Supreme Court of New Jersey finally addressed this question straight on. In that case, three teachers were let go by the Bridgewater Board of Education. If the time the spent as replacements for other teachers out on leave, they would have tenure. However, the Board of Education argued that this time should not count under the “replacement” exception to counting time for tenure. The teachers, obviously, argued that since they had been working straight for more than the time required for tenure, it should count. Two had received some form of notice that the time would not count, one did not.

In an older case,The Appellate Division of New Jersey’s Superior Court had determined, in the different context of contract negotiations, that in order for an employee to be considered a “replacement ,” the burden is on the local board of education to prove both that the teacher is “acting in place of a teacher,” and that the teacher whom the employee is replacing must have been “absent or disabled.” The New Jersey Supreme Court adopted these requirements, and added another when trying to determine “countable” time for tenure qualification. In such a case, the local board of education must prove that the employee had received notice making clear that the “replacement” time would not count toward her acquisition of tenure. Because two had received this notice, the Supreme Court held that they did not have tenure. Because it was disputed and unclear whether the third had received notice, the Supreme Court remanded the case for further factfinding.

The takeaway is that in order for “replacement” time not to count toward tenure, the local board of education must ensure that it sent clear notice t the employee – and that it can prove it did so.

Our employment attorneys represent New Jersey’s teachers in all aspects of employment law. Call (973) 890-0004 or e-mail us to schedule a consultation. We can help.