Employee Choices for Challenging Discipline
In a recent unpublished decision, the Appellate Division of the Superior Court addressed the employment law issue of jurisdiction for appealing discipline of tenured school employees.
When a New Jersey government employee faces discipline, there are several avenues for relief depending on the nature of the alleged wrong by the employer and the relief sought. If the alleged violation is one of constitutional rights, discrimination, or whistleblowing retaliation, the employee can sue in New Jersey state or federal court, or appeal in an administrative forum. The choice will depend on the relief sought. If the employee does not want to continue working for the employer or does not care about correcting the discipline, but rather only cares about collecting money damages, then she would sue in court (New Jersey state courts and New Jersey law provide greater procedural and substantive advantages for employees, so they usually file in the Superior Court rather than federal court). If the employee is more concerned about getting her job back or correcting the discipline, often the administrative route (which can also provide back pay) is the best choice. When there are no issues of constitutional rights, or discrimination or retaliation, then the administrative route is the only option.
Recently the Appellate Division examined the options for administrative relief under the TEACHNJ Act. Prior to this Act, all tenured public education employees could appeal to the Commissioner of Education, who would decide based on the facts found by an administrative law judge in the Office of Administrative Law. Both the employee and employer could then appeal adverse decisions to the Appellate Division and the New Jersey Supreme Court.
However, the TEACHNJ Act eliminated that route. Now, if an employee objects to tenure charges he appeals to the Commissioner of Education, who then refers the case to an arbitrator who makes a final decision. These decisions can be appealed only on very, very limited grounds; the practical effect is that arbitration awards are extremely difficult to successfully appeal. Many people fear that arbitrators will be less favorable to employees (although the decisions tend to be fairly even). Thus, many try to avoid arbitration. Such was the situation in the case of Christopher Luskey versus the Carteret Board of Education.
The Luskey Case
Christopher Luskey was a tenured janitor for the Carteret Board of Education. He was served with tenure charges seeking to terminate his employment. Because Luskey’s union contract (known as a collective negotiations agreement, or CNA) provided a grievance procedure, Luskey sought to have the case heard by the Public Employment Relations Commission (PERC), which governs employer-employee relations in the collective negotiations sphere. However, PERC declined jurisdiction and refused to enjoin arbitration with the Commissioner of Education. Luskey made the same arguments to the arbitrator, who likewise rejected them.
The arbitrator upheld the tenure charges terminating Luskey’s employment. The Board applied to the New Jersey Superior Court to confirm the award, and Luskey argued that the Superior Court should vacate it. The judge in the Superior Court rejected Luskey’s argument that the matter should be heard by PERC and confirmed the arbitration award terminating him. Luskey appealed to the Appellate Division of the Superior Court, again arguing that PERC should have jurisdiction.
The Appellate Division’s Ruling
The Appellate Division likewise rejected Luskey’s argument that PERC should hear his appeal.
The Appellate Division explained that tenure under New Jersey employment law is created by statute, not contract. Since PERC deals with rights created in collective negotiations, it is not the proper forum for review. Since tenure is a creature of statute, then it is the statute that governs where review should be held, and in this case the TEACHNJ Act required that appeals from tenure charges for public education employees be resolved by an arbitrator assigned by the Commissioner of Education.
Moreover, the Court explained, even if Luskey’s union contract had somehow conferred tenure on him, the procedures for appealing tenure charges would still governed by the TEACHNJ Act and the New Jersey Tenure Hearings Law, and therefore decided by an arbitrator.
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