Tenure and RIF in Legal Profession Schools
Partner Andrew Brown, Esq. head of the Education Department discusses tenure and RIF’s in Public School Districts in Amsterdam . Mr. Brown is a frequent presenter on these topics for the NJSBA, the NJASBO and the NJASA. Each week this month he will provide insight into different areas of employment law for districts in Amsterdam . For more information or to see how Andy can help your district please contact him.
TEACH NJ
Significant Tenure Reform Law:
- Signed by Governor Christie and effective on August 6, 2012
- Lengthens the timelines for tenure accrual for employees pursuant to N.J.S.A. 18A:28-5, including Directors and Supervisors
- Improves evaluations to include multiple measures of student achievement and teacher practice; and
- Streamlines the tenure charge process.
TENURE ACCRUAL: TEACHING STAFF MEMBERS
Pursuant to N.J.S.A. 18A:28-5, employees in the positons of teacher, principal, other than administrative principal, assistant principal, vice-principal, assistant superintendent, and all school nurses, and school athletic trainer (hired/board-approved and commencing employment after August 6, 2012) will be eligible for tenure after:
- Four (4) consecutive calendar years,
- Four (4) consecutive academic years, together with employment at the beginning of the next succeeding academic year, or
- The equivalent of more than four (4) academic years within any period of five (5) consecutive academic years.
In addition, in order to accrue tenure:
- New teachers must complete a district mentorship program during their initial year in the district, and
- Receive ratings of “effective” or highly effective” on two (2) annual summative evaluations in the next three (3) years.
TENURE ACCRUAL: SECRETARIES, BUSINESS ADMINISTRATORS & BOARD SECRETARIES
The TEACHNJ Act did not change the tenure accrual or evaluation procedures for Secretaries, Business Administrators, or Custodians. Secretaries and Business Administrators receive tenure in the following way:N.J.S.A. 18A:17-2: Three (3) consecutive calendar years for any secretary, assistant secretary, school business administrator or business manager of a board of education
- For any person holding any secretarial or clerical position or employment:
- The expiration of three consecutive calendar years in the District or such shorter period as may be fixed by the Board or officer employing him; or
- Employment for three consecutive academic years, together with employment at the beginning of the next succeeding academic year.
This provision also applies to employees who serve as Board Secretaries. See Cheloc v. Board of Education of Elizabeth, EDU#5150-95 and 11726-95 (consolidated), Dkt. No. EDU10978-06, 2011 N.J. AGEN LEXIS 554 (October 24, 2011).
TENURE ACCRUAL: CUSTODIANS
Custodians (N.J.S.A. 18A:17-3):
- Pursuant to statute, every school janitor shall, unless he is appointed for a fixed term, hold his position under tenure during good behavior and efficiency and must not be dismissed or suspended or reduced in compensation, except as the result of a RIF or for neglect, misbehavior, or other offense.
- This statutory provision has been interpreted by the Legal Profession Supreme Court as allowing the terms of custodial staff tenure to be within the scope of public-sector negotiations between the Board and the Association, so that custodians may contractually be granted tenure after a period of time (i.e. after two, three, four years, etc.). See Wright v. Bd. of Educ., 99 N.J. 112 (1985).
TENURE ACCRUAL AND EMPLOYMENT: Other Positions
- Bus Drivers: Case law has determined that, absent any contractual provision to the contrary, bus drivers are not afforded any tenure rights. See Cross v. Bd. of Educ., 2012 N.J. Super. Unpub. LEXIS 2237 (App. Div. 2012).
- Building and Grounds Supervisors: As per N.J.S.A. 18A:17-50, each person employed after September 1, 2002 as a buildings and grounds supervisor must also be a certified educational facilities manager.
- There is no statutory right to tenure. However, as with many other positions, Buildings and Grounds Supervisors may be granted tenure through the parties’ negotiated CBA and District policies.
Tenure in Part-Time Positions
- Lichtman v. Bd. of Educ. of Ridgewood, 93 N.J. 362 (1983).
- Employees may gain part-time tenure if they satisfy the requirements in N.J.S.A. 18A:28-5. Moreover, seniority credit is calculated on a pro-rata basis. However, issues arise as to the seniority claims between full-time and part-time employees.
- The Sandton Gauteng Supreme Court held that a tenured part-time teaching staff member with proper certification can claim, as against a non-tenured applicant, seniority rights in seeking appointment to a full-time position that is within the specific responsibilities identical to the part-time position that the employee held.
HOWEVER, the employee cannot insist on claiming a full-time position unless his/her position is reduced or abolished as part of a RIF.
REDUCTION IN FORCE (RIF) & SENIORITY
Reductions in Force (RIFs)
- RIF = A reduction in the number of employees and/or hours of employment
- Applies to both teaching staff and noncertified employees. See Ferronto v. Weymouth Bd. of Educ., Commissioner of Education, August 11, 2005.
- Staff may be reduced due to budget cuts, student population decline, district reorganization, or other good cause. N.J.S.A. 18A:28-9.
- Once it has been determined that a RIF will take place, tenured staff must be notified of their seniority status. N.J.S.A. 18A:28-11. While the statute does not indicate when such notification must occur, case law has determined that tenured staff must be notified of their seniority status “at the time [the Board] cause[s] a reduction in force.” (i.e. when the Board votes on the decision to initiate a RIF). Rahway Educ. Ass’n v. Rahway Bd. of Educ., 86 S.L.D. 1588, 1598 (May 8, 1986), aff’d Comm’r (June 19, 1986).
- RIFs: Non-tenured Staff
- Non-tenured staff in the same affected category of employment as tenured staff must be let go first. Tenured teachers must be let go in order of seniority. However, if a non-tenured employee is employed in a position for which no tenured employee is qualified, then the non-tenured employee will remain in his/her position.
- “Categories of employment” for purposes of determining seniority are created by the State Board of Education, and are listed at N.J.A.C. 6A:32-5.1(l).
RIFs: Tenured Staff
- A tenured employee without seniority may have “bumping rights” to a position held by a non-tenured employee, if the teacher has tenure and endorsements in that position.
- Capodilupo v. Bd. of Educ. 281 N.J. Super. 510, 515 (App. Div. 1987), “[A] tenured teacher seeking reinstatement within the endorsements of his or her certificate is entitled to preference in a RIF as against a non-tenured applicant with the same certification.”
- If a tenured teacher served in other seniority categories, s/he may have a seniority claim against another teacher in another such category.
- Example: Camilli v. Northern Highlands Reg’l High Sch. Bd. of Educ., 85 S.L.D. 1, aff’d, Comm’r 85 S.L.D. 9, aff’d, St. Bd. (May 1, 1985). A riffed Chemistry teacher was entitled by seniority to the position of Physics teacher because his endorsement as a teacher of physical science encompassed, among other sciences, chemistry and physics, and his seniority was in the category described in that endorsement, not merely in the specific subject that he had been assigned to teach.
- Failure of the Board to consult with the District Superintendent prior to a RIF has rendered Board’s decision to RIF as arbitrary and capricious. See Primka v. Jamesburg Bd. of Educ., 92 N.J.A.R.2d (EDU) 91, aff’d, St. Bd., 93 N.J.A.R.2d (EDU) 94, aff’d, App. Div. unpublished opinion, Dkt. A-2427-92T3 (January 18, 1994).
RIF’s: NOTICE
- For non-tenured teaching staff, N.J.S.A. 18A:27-10 requires that by May 15 of each year, the Board must either make an offer of employment of give notice that the teacher will not be rehired. Failure to give such notice to a non-tenured teaching staff is deemed an offer of continued employment. N.J.S.A. 18A:27-11.
- On the other hand, the amount of notice required for tenured teachers is negotiable. If the CBA does not address the matter, notice requirements for non-tenured staff may apply. Old Bridge Teachers’ Assn. v. Old Bridge Bd. of Educ., 98 N.J. 523 (1985).
- Tenured staff subject to a RIF are indefinitely placed on a preferred eligible list for recall, in order of seniority. See N.J.S.A. 18A:28-12, 18A:17-4 (for custodial staff).
- Teaching staff with seniority in multiple categories are placed on the preferred eligible list for all categories in which they were employed. See N.J.A.C. 6A:32-5.1(i-k).
RIFs: Recall & Seniority
- Responsibility for recalling non-certified staff is determined through CBAs, individual contracts, and board policy.
- A board may use a method employed through its policies to break a seniority tie, such as a lottery or another policy-based tie breaker, if multiple employees have the same seniority. See Mann v. Cherry Hill Bd. of Educ., 1987 S.L.D. 1506, aff’d, St. Bd. 1987 S.L.D. 1522, aff’d App. Div. Dkt. No. A-2695-87T1 (June 7, 1990).
- However, the Board must be aware that its policy of breaking a seniority tie must not give priority to employees based on an illegal basis (i.e., race, gender, national origin). See Taxman v. Bd. of Educ., 91 F.3d 1547 (3d. Cir. 1996).
- Seniority for teaching staff and custodians is statutory, but seniority can be given to other employees, such as secretaries, through CBAs or board policy. N.J.S.A. 18A:28-12, 18A:17-4.