One of the areas which counterintuitively generates among the most questions in New Jersey employment law is teachers’ tenure. Although teacher tenure dates back over a century, tenure is still an area of the law which generates much controversy and litigation. The Appellate Division of New Jersey’s Superior Court recently issued a decision in one such area of contention in the case of Zimmerman v. Sussex County Educational Services Commission.
In that case, Beryl Zimmerman and Judy Comment were tenured, part-time teachers for the Sussex County Educational Services Commission. They provided remedial instruction to eligible students. For reasons that were unclear, the Commission reduced their hours, but not their rate of pay. During the 2013-2014 school year, Comment worked approximately 1117 hours, and earned a gross salary of $36,838.74. The following year, however, the Commission reduced Comment’s teaching to only 305 hours, a reduction of 784 hours and $26,507.61. Zimmerman’s hours were reduced from 954 during the 2013-2014 school year to 658 the next, reducing her gross earnings from $27,668.81 to $19,603.42, a reduction of $8,065.39.
Zimmerman and Comment appealed to the New Jersey Commissioner of Education claiming that the reduction violated their tenure rights. The Commission argued that it did not violate the teachers’ tenure because their hourly rate not reduced (and in fact they received an annual incremental raise in their hourly rate), and their individual contracts and collective negotiations agreement contained no guaranteed minimum number of hours they would work. After proceedings before an administrative law judge, the Commissioner of Education agreed with the Commission and rejected Zimmerman’s and Comment’s appeal. The Commission of Education found that because the hourly rate was not reduced, and because the union and individual contracts did not guarantee Zimmerman and Comment a certain number of hours, the reduction in their hours did not violate their tenure protections. Zimmerman and Comment then appealed the Commissioner’s decision to the Appellate Division, which reversed the Commissioner’s decision.
The Appellate Division explained that the fact that the union and individual contract did not have a minimum number of hours did not matter. Tenure rights are given by statute in New Jersey’s tenure laws. They cannot be changed by union or individual contracts. Tenure rights are non-waivable rights of the employee.
Tenure rights can, however, be superseded in certain circumstances. For example, a reduction in force (i.e, a “layoff”) can be reason for terminating a tenured employee’s job or reducing her salary. However, even in this situation, it can only be done based on actual concrete reasons, such as a reduction in funding or a reduction in the number of students which the school district serves. In this case, however, neither the administrative law judge nor the Commissioner of Education made any findings that these were economic reasons for the reduction, or on how Comment’s and Zimmerman’s relative seniority with similarly situated employees would have impacted a legitimate reduction in force. The Commission, the administrative law judge and the Commissioner or Education all simply rested their decision on their belief that the reduction in hours, combined with a lack of the minimum number of contractually mandated hours, meant the reduction in hours was not a tenure violation, and the Appellate Division told them that they were flat out wrong.
Our lawyers represent teachers, public and private employees, and private sector employers in all aspects of New Jersey employment law, including tenure hearings and appeals. Call (973) 890-0004 or email us to schedule a consultation with our attorneys.