Tenure is one of the most important protections for teachers in New Jersey employment law. Both full-time and part-time teachers may receive tenure protection. However, no New Jersey court has addressed the situation where a part-time tenured teacher’s earnings were reduced when her hours were cut, even though her hourly rate of pay was slightly increased. However, in the recent case of Zimmerman v. Sussex County Educational Services Commission, the New Jersey Supreme Court addressed this issue head on.
Background: General Principles About Tenure for New Jersey Teachers
One of the bedrock principles of New Jersey public education employment law is tenure protection. Tenure of teaching staff members employed in the positions of teacher, principal, assistant principal, vice-principal, assistant superintendent, athletic trainer, school nurse and other positions in public schools requiring certification is generally governed by Title 18A of New Jersey Statutes. It was designed to protect competent and qualified teaching staff member from being subject to removal, discipline or “reduction in compensation” for “unfounded, flimsy or political reasons.” Tenure is a statutory right, not contractual. It cannot be waived, forfeited or bargained away. When a teacher satisfies the statutory requirements, she receives tenure protection.
In 2012, the TEACHNJ Act raised the “duration of service” required for acquiring tenure from three years to four. Now, under the Tenure Act, are three ways for teachers hired after 2012 to meet this requirement:
- Serving for four consecutive calendar years.
- Serving for four full academic years, plus the first day of the following academic year.
- Serving a total of four academic years, even if nonconsecutive, within a period of consecutive academic years.
Generally speaking, once a teaching staff member has tenure, she cannot be dismissed or have her compensation reduced without strict compliance to New Jersey’s tenure laws. After acquiring tenure, an employee’s position receives extra protection. Such an employee “under tenure during good behavior and efficiency and they shall not be dismissed or reduced in compensation except for inefficiency, incapacity, or conduct unbecoming such a teaching staff member or other just cause,” and even then, only after the full protection of the Tenure Hearing Law and the TEACHNJ Act.
The Zimmerman Case: What Tenure Means for Part-Time Teachers
In the New Jersey Supreme Court’s recent case, Beryl Zimmerman and Judy Comment were part-time tenured teachers working for the Sussex County Educational Services Commission. They provided remedial education in grades K-12. Their hours fluctuated from year to year, but their hours were drastically reduced for the 2014-2015 academic year. Non-tenured teachers were used for at least some of the hours which Zimmerman and Comment were not assigned. Their union contract did not specify a minimum number of hours.
The teachers filed an appeal with the Commissioner of Education claiming that their tenure rights were violated by significant reductions in their hours, and by assigning hours to non-tenured teachers instead of them. The matter was transferred to the New Jersey Office of Administrative Law (“OAL”) as a contested case, and a hearing was held before an administrative law judge (“ALJ”) (today, under the TEACHNJ Act, a teacher tenure appeal would be transferred to an arbitrator rather than the OAL). The ALJ found that the reduction in hours did not constitute a reduction in compensation because their hourly rate had not been reduced, indeed it had actually gone up, and they were not guaranteed a minimum number of hours in their contracts. The Commissioner of Education adopted the ALJ’s findings. The teachers then appealed to the Appellate Division of New Jersey’s Superior Court, which found in their favor. Their employer then appealed the Supreme Court of New Jersey which found that the reduction in the teachers’ hours could have constituted a reduction in pay, and thus a tenure violation, but the record was not clear enough so the court remanded the case for additional fact-finding.
The Supreme Court rejected the ALJ’s and Commissioner’s decisions. First, the Supreme Court explained that tenure rights are created and guaranteed by statute, the New Jersey Tenure Act. They cannot be waived or bargained away in a contract. Therefore, the argument that the fact that the contracts did not contain a minimum number of hours was not controlling. Moreover, New Jersey courts had previously ruled that a reduction in hours could be a reduction in force (a layoff), thus triggering seniority and tenure rights.
Moreover, the Tenure Act requires that a reduction in the teacher workforce must be made on the basis of seniority, the Supreme Court explained. Thus, taking work from qualified, tenured teachers and assigning the same work to non-tenured teachers can violate the Tenure Act. While a board of education cannot control the size of its student body, and thus the amount and type of work for its teachers, the Supreme Court explained that a board can determine how that work is allocated and assigned.
The Supreme Court also ruled that the Tenure Act does not distinguish between full-time and part-time teachers. Each is eligible for tenure. Moreover, if taken to its logical extreme, the argument of the Sussex County Educational Services Commission and the reasoning of the Commissioner of Education would allow employers to effectively terminate tenured teachers by reducing their hours to none, or some insignificant amount, while hiring non-tenured (with lesser salaries) to fill in.
The Supreme Court therefore upheld the finding of the Appellate Division and rejected the New Jersey Commissioner of Education’s interpretation of the New Jersey Tenure Act.
However, the Supreme Court also ruled that part-time tenured teachers do not have a right to the same or greater salary in succeeding years. There is no mathematical formula for determining if a violation occurred. The employer is allowed to reasonably allocate work, provided that it generally favors tenured over non-tenured teachers.
The Supreme Court found that the record was not full enough to base a decision on. Therefore, it remanded the case so that a complete record could be created. The court required that:
The record must identify the considerations that led to the work assignments allocated by the SCESC. That should include a determination of the certification requirements for the assignments, consideration of the geography of assignments and scheduling needs for the schools being serviced, whether unique educational continuity concerns of the students being serviced were involved in allocating assignments, and whether, all things considered, preference was given to tenured staff and senior staff. We add only that the one educational/management justification that we are aware of in this record — setting a minimum number of students for instructional groups — does not violate the arbitrary and capricious standard of review and need not be revisited on remand.
In sum, a remand is necessary for a full and proper review of the SCESC’s justification for its allocation of work, which directly affected the amount of compensation received by the tenured part-time staff who brought this action. The justification must be reasonable and not arbitrary or capricious, as determined by the Commissioner.
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