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Court Explains De Facto Employee Law for New Jersey Government Employees

Under the New Jersey public employment law and Title 18A of New Jersey statute, which governs New Jersey employment law for public school and public college employees, if an employee is actually performing the work of a particular position, even though they are designated in another, they must receive the compensation for the job they are working in.  In other words, public employers can’t underpay employeesbully-3233568__340-300x272 by having them fill a higher or more difficult position while paying them for a lower or less difficult one.  The Appellate Division recently examined these statutes.


The De Facto Employee Laws

Title 18A provides that:

18A:16-11.  Compensation of de facto officer or employee     A person who holds de facto any office, position or employment in a school district and who performs the duties thereof shall be entitled to the emoluments and compensation appropriate thereto for the time the same is so held in fact and may recover therefor in any court of competent jurisdiction.

Title 40A, which governs municipal and county employees, provides:

40A:9-6.  ‎De facto officers and employees; right to compensation‎
‎Any person who has held or who may hereafter hold, de facto, any office or position in the public service of any county or municipality, and who has or shall have performed the duties thereof, shall be entitled to the emoluments and compensation appropriate to such office or position for the time in fact so held and may recover therefor in any court of competent jurisdiction, notwithstanding any refusal or failure of any other person or officer to approve or authorize the payment of said emoluments and compensation.‎


The Reed Case

The Appellate Division of the Superior Courtv of New Jersey recently interpreted the education statute in the case of Philip Reed vs. Board of Education of the City of East Orange, Essex County, although it made it clear its that analysis also applied to the statute for New Jersey municipal and county employees.

The Court explained that a de facto employee so one who holds a position in:

An open and notorious occupancy of a public office, under color of authority but without benefit of appointment, i.e. a holding out to the public with the acquiescence of one’s principal, as a result of which the acts of the officer are binding as to the principal and members of the public who rely thereon.

* * * *

It is not sufficient for one seeking recovery … to show simply that he or she performed the duties of a particular position. Rather, the statute prescribes that one seeking such recovery must meet two requirements: first, the claimant must demonstrate that he or she “held” the “office or position” on a de facto basis; and second, that, while holding the position on that de facto basis, the claimant “performed the duties” of the position.

In the Reed case, the Court explained that Mr. Reed was serving as the director of security for the school district even though never officially appointed to that position, but was being paid only as one of the security supervisors who reported to him.  The school district even referred to him as the director of security.  After his annual employment contract was not renewed for the 2018-2019 school year, he sued the board of education for the difference in salary he should have received in the higher position.  The trial judge found that he was the de facto security supervisor, but still dismissed his case because he said Reed hadn’t proved what his salary should have been with sufficient exactitude.

Reed appealed and the Appellate Division reversed.  The Appellate Division agreed with the trial judge that Reed had proved that he held the position of de facto director of security.  And while the Appellate Division agreed that Reed had not proved exactly what his salary should have been, it explained that he had given a fairly specific range.  The Appellate Division explained that it is often difficult for a plaintiff to prove damages exactly, provided the employee has given sufficient evidence for a jury to make a reasonable estimation of what his salary should have been, that is sufficient.

The Appellate Division therefore reversed the trial judge’s dismissal of Reed’s case, and sent it back to the trial court for a jury trial.


The Takeaway

The bottom line is that a government employer cannot underpay its employees by shifting them to a job with higher responsibilities while paying him for a lower level job.  When it does, New Jersey employment law gives the employee remedies under the de facto employee statutes, even if the employee can’t prove exactly what his salary should have been.


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