Labor & Employment

By: Becky Batista, Law Clerk

Editor: Sanmathi (Sanu) Dev, Esq.

On June 6, 2022, the New Jersey Appellate Division issued a published decision in Parsells v. Board of Education of Somerville in which it decided that school boards have a duty to notify full-time teachers, in advance, of adverse job consequences before they are appointed to part-time teaching positions, even when the teacher voluntarily seeks the part-time position. In reaching this decision, the Appellate Division reviewed the holding of the New Jersey Supreme Court’s decision in Bridgewater-Raritan Education Association v. Board of Education of Bridgewater-Raritan School District.

This case concerned a tenured, full-time teacher, who requested a voluntary transfer to a part-time teaching position with health benefits for the 2016-17 school year. The Board approved her request. The teacher discussed her work status with the District for the 2018-2019 school year, at which time the District informed her that she had no automatic entitlement to a full-time teaching position and that she relinquished her rights when she applied for and accepted the part-time teaching position. The District required her to apply and interview for a full-time teaching position; ultimately the District did not select her for a full-time teaching position. She appealed to the Commissioner, arguing that the Board denied her tenure rights and that she had not voluntarily relinquished her tenure rights by accepting a part-time position.

An Administrative Law Judge (“ALJ”) found in favor of the Board, concluding that the teacher had voluntarily stepped down from her full-time teaching position and as such had no right to return to it. The Commissioner reversed the ALJ’s initial decision and ordered the Board to reinstate the teacher to a full-time teaching position, finding that Bridgewater-Raritan supported the findings that the teacher did not waive any rights to her full-time position. The Commissioner further held that the Board had a separate duty to inform her of the consequences of transferring to a part-time position before she voluntarily changed jobs. The Board appealed the Commissioner’s final decision to the Appellate Division arguing that the Supreme Court’s decision in Bridgewater-Raritan was misinterpreted to require advance notice from the Board without an express statutory provision.

The Appellate Division viewed the issue as whether Bridgewater-Raritan compels school boards to notify in advance a full-time tenured teacher who voluntarily takes a part-time teaching position that she is at risk of not getting her full-time job back. The Appellate Division concluded that it does, and it is a proper and logical extension of the Court’s holding in Bridgewater-Raritan. In reaching this conclusion, the Appellate Division reasoned that tenured full-time teachers, a class of employees with substantial protections under the Tenure Act, are entitled to advanced notice about the consequences of voluntarily transferring from full-time teaching to part-time. They further held that “no specific statutory provision is needed to trigger this duty.”

The Court affirmed the Commissioner’s findings and noted that this duty facilities disclosure of important information to teachers who must live with the consequences of their decisions.

By: Kristen M. Doyle, Law Clerk
Editor: Sanmathi (Sanu) Dev, Esq.

In a case decided on June 16, 2021, the New Jersey Supreme Court held in Armando Rios Jr. v. Meda Pharmaceutical, Inc. that a supervisor’s use of two offensive slurs was severe and pervasive enough to support a hostile work environment claim for a jury to decide under the New Jersey Law Against Discrimination (“NJLAD”).

The facts on the summary judgment record established that defendant Meda Pharmaceutical, Inc. (“Meda”) hired Rios, a Hispanic male, in May 2015 as the company’s Director of Brand Marketing. Rios alleged that one month after he began working at Meda, his direct supervisor stated in regard to Rios’ wife looking for a new home that “it must be hard for a sp– to have to get FHA loans.”

Several weeks later, Rios asserted that his supervisor repeated the slur while the two were casting actresses for a television commercial, allegedly stating that the actress “would work” for the commercial “if she didn’t look too Sp–ky.” The supervisor denied making both of the statements.

Rios stated that he followed Meda’s Equal Employment Opportunity Policy and Complaint Procedure by meeting with Meda’s Director of Human Resources after each incident in order to orally report the comments.  Rios alleged that the Director of Human Resources was dismissive and did not take notes. Rios stated that he did not file a written complaint in fear of retaliation.

The company placed Rios on probation in February of 2016 for poor performance and eventually terminated him on June 1, 2016. Rios filed a complaint on March 31, 2017, alleging, among other claims, that Meda violated the NJLAD by creating a hostile work environment.

The trial court granted defendant’s motion for summary judgment, holding that no rational factfinder could conclude that the alleged comments were severe or pervasive enough to create a hostile work environment. The Appellate Division affirmed, and the New Jersey Supreme Court granted certification.

The Court reversed and remanded the case for trial, holding that when viewing the evidence in the light most favorable to the plaintiff, that a rational jury could conclude that the demeaning and contemptuous slurs uttered by a direct supervisor were sufficiently severe or pervasive to create a hostile work environment. The Court also heavily considered the assertions made by the employee that he reported the incident to his employer and the employer took no action. As a result, the Court denied summary judgment to the employer. This decision marks a shift in the application of the severe and pervasive standard in relation to establishing a hostile work environment under the NJLAD, significantly broadening the scope of past interpretations.

The Court determined that to evaluate a hostile work environment claim, the remarks must be viewed from the perspective of a reasonable Hispanic person in the plaintiff’s position. The Court then held that based upon the highly offensive and demeaning slurs spoken in a workplace setting by a direct supervisor, the derogatory comments present sufficient evidence of severity to create a genuine issue of material fact.

On February 3, 2021,the New Jersey Supreme Court in Moshe Rozenblit v. Marcia V. Lyles (A-41/42-19) (083434) unanimously upheld a provision in a Jersey City School District collective negotiations agreement (“CNA”) permitting two teachers employed and compensated by the district to work full-time on business of the Jersey City Education Association (“Association”).

Taxpayers sued contending that the CNA’s release time provisions violated the New Jersey Constitution’s Gift Clause.  The trial court granted summary judgment to the district based upon the district’s right under N.J.S.A. 18A:30-7 to grant “payment of salary in cases of absence not constituting sick leave.”  The Appellate Division reversed, concluding that the Board acted beyond the scope of its statutory authority when it paid the salaries and benefits of the two teachers who had been released full-time to work on Association business.

The Supreme Court reversed the Appellate Division and affirmed the trial court’s decision.  The Court reasoned that N.J.S.A. 18A:30-7 confers on boards the authority to grant to school employees leaves of absence in addition to and distinct from sick leave.  The Court explained that the State Constitution’s Gift Clause was not violated because the contract provisions serve the paramount public purpose of promoting labor stability in the public sector.   The public purpose is derived from the Employer–Employee Relations Act (EERA), N.J.S.A. 34:13A-2, in which the Legislature indicated that the best interests of the people of the State are serviced by the prevention or prompt settlement of labor disputes. The Court drew a nexus between the public purpose and the duties of the teachers which included facilitating labor-management relations, resolving disagreements, promoting effective communication between teachers and administration, promoting harmonious employer/employee relationships, and helping set and clarify school policies with the administration.  Accordingly, the Court determined that the full-time release provisions do not constitute gifts to the Association in violation of the State Constitution.

In light of the Court’s decision, school districts should be prepared for their unions to advance similar provisions in negotiations.

On January 21, 2021, the New Jersey Appellate Division issued a published decision in Simadiris v. Paterson Public School District in which it decided whether a board of education’s decision to certify tenure charges against an employee during private session violated that employee’s right to request such consideration in public. In short, the Appellate Division agreed with the school district and ruled that a board of education was prohibited from discussing the tenure charges during public session.

Tenure charges were brought against an employee of the Paterson Board of Education (“Board”). The employee’s attorney received notice two days before a Board meeting stating that the Board would consider during private session whether there was probable cause for the tenure charges. The employee objected to the notice. The Board responded that N.J.S.A. 18A:6-11 requires the discussion to occur in private session.

The employee sued, and the case made its way to the Appellate Division.  The employee essentially argued that N.J.S.A. 10:4-12(b)(8) gave her the right to demand that the discussion by the Board regarding her employment – whether to certify tenure charges – was to occur in public session. Further, the employee argued that the Board improperly failed to provide her with a Rice notice to allow the discussion to occur in public session. The Board argued that N.J.S.A. 18A:6-11 is the controlling statute and precludes such discussion and/or voting regarding tenure charges to occur in public session, as N.J.S.A. 18A:6-11 states, in part, “The consideration and actions of the board as to any charge shall not take place at a public meeting.”

Ultimately, the Appellate Division agreed with the Board and determined that N.J.S.A. 18A:6-11 clearly does not provide an employee the right to have the discussion and vote regarding whether to certify tenure charges in public session. In reaching this conclusion, the Appellate Division reasoned that while the Open Public Meetings Act generally favors all discussions and actions to be public, there are legislative exceptions, such as the one created by N.J.S.A. 18A:6-11. The employee’s rights in this case were not violated.

As a practitioner who has spent most of his legal career as a school board attorney serving as general or labor counsel to boards of education, I address a trend that seems to be on the rise – litigation brought for employment discrimination in the wake of a non-tenured teacher being non-renewed at the conclusion of the teacher’s annual employment contract.

In the world of school law, a “non-renewal” is distinct from a “termination,” “discharge,” or “firing” in both the legal and practical sense.  The latter tend to occur upon notice, and, in the public school context, almost always with cause.  A “non-renewal,” however, can be with or without cause.  All non-tenured teachers are entitled to written notice by May 15 each year about whether they will be renewed or not for the next succeeding school year.  N.J.S.A. 18A:27-10.  If a teacher is non-renewed, he or she has a right to request a written statement of reasons and appear before the Board of Education for an informal hearing known as a Donaldson hearing, the purpose of which is to attempt to convince the Board to offer reemployment notwithstanding the Superintendent’s failure to recommend renewal.  The case law of the Commissioner of Education has, for decades, made it absolutely clear that a non-tenured teacher can be non-renewed for any reason or no reason at all, so long as it is not a reason that would be “arbitrary, capricious, or unreasonable,” such as, for example, discrimination or unlawful retaliation.

Indeed, the ability of the school district to sever ties with a teacher through this quick and relatively painless process is precisely what delineates the difference in legal rights between a tenured teacher and a non-tenured teacher.  Once a teacher fulfills the statutory requirements and obtains tenure, the process for removal becomes significantly more difficult.  Tenured teachers are legally entitled to new contracts each year, and they can only be removed upon the filing of tenure charges and a statement of evidence with the Board of Education, which are then referred for Board approval, followed by a “sufficiency determination” on the charges from the Commissioner.  Only if the charges are deemed sufficient to warrant removal is the matter then referred for an expedited arbitration hearing by one of 50 arbitrators who are maintained on a panel by the Commissioner for hearing such tenure cases.  Grounds for appeal are extremely limited.  As a result, tenure charges tend to be filed in only the most serious cases of employee misconduct or inability, or in cases of documented inefficiency.

This distinction between tenured employees and non-tenured employees has led to an interesting, and somewhat paradoxical, phenomenon when it comes to the types of employment litigation brought against local school districts, in general, and in terms of which employees are likely to bring it, in particular.  To put it bluntly, a school district is far more likely to be sued in court under a statutory cause of action with fee-shifting by a non-tenured teacher who was non-renewed than by a tenured teacher who was subject to tenure charges.

By way of example, recently, I successfully defended a case against a charter school brought under the New Jersey Law Against Discrimination (“NJLAD”).  The plaintiff was a teacher/learning specialist who was employed for just over a semester and a few months before she was granted an extended medical leave of absence, followed by a maternity leave, under the Family Medical Leave Act (“FMLA”).  The employee had significant performance and disciplinary issues since beginning her employment the previous January and working the second semester of her first school year.  Just two months into the new school year, she unexpectedly went out on disability leave in October due to a high-risk pregnancy.  The following May, the employee was non-renewed by reason of her performance issues.  She never requested a statement of reasons or a Donaldson hearing.

The employee brought disparate treatment theory claims under the NJLAD, alleging that her non-renewal was based on gender, pregnancy, and disability discrimination.  Her performance evaluations had been mediocre at best.  Within the first two months of her employment, the charter school had found her classroom management skills to be so poor that it assigned her a teacher-mentor to coach her and “reset” her classroom culture, which had become toxic.  The teacher had initially shown some promise, but soon, these performance issues caused her supervisors to reconsider promoting her.  She had been absent from her classroom without explanation.  Her fellow teachers indicated she was warehousing difficult students in the back of their rooms with “time-outs” nearly every day.

After almost 2 years of discovery painstakingly documenting the performance deficiencies, the case was ultimately dismissed and summary judgment was granted in favor of the charter school, with the trial judge finding (1) that the Plaintiff failed to set forth sufficient evidence from which a reasonable jury could conclude she had satisfied the prima facie elements of discriminatory intent, or that she was performing the functions of her position at a level that met the school’s legitimate expectations; and (2) that the charter school had numerous legitimate, non-discriminatory reasons for non-renewing her employment, including below proficient evaluation scores, improper use of “time-outs,” and poor classroom management skills.

If it were a tenured teacher, such a case could never have occurred.  The tenure arbitration process would have decided threshold legal issues, such as whether the employee was performing her functions in a manner that met with the school’s legitimate expectations, or whether there were adequate non-discriminatory reasons to terminate the employee in the very first instance.  Knowing this, the school district would have taken great pains to ensure significant documentation of the employee’s misconduct or inefficiency long before undertaking to bring tenure charges.  In this case, the evidence was there in the minds of the teacher’s colleagues and supervisors, but it was not documented.  The oversight was a simple one, oft-repeated in the world of public education.  Sometimes, the feeling that a school district can non-renew any non-tenured teacher painlessly and without consequences is so well-known it can lead to a false sense of security.  Things that would have been documented in uncomfortable meetings, letters of reprimand, or “evaluative memoranda” in the personnel file fail to be documented.

The takeaway for public school employers:  Any time you are considering non-renewing a non-tenured employee who is a member of a protected class, or who has complained of the employer’s practices or policies, recognize that the district is potentially vulnerable to litigation under the NJLAD, the Conscientious Employee Protection Act (“CEPA”), or other statutory remedies, and document, document, document. . . .  If the employee has done something serious enough to warrant termination, discuss the situation with legal counsel and consider terminating rather than non-renewing them, even though it risks a labor arbitration over whether the termination was “for just cause.”  Better to have an arbitrator cheaply decide a termination case than to find the school district enmeshed for years in sticky employment litigation in Superior Court with a hungry Plaintiff’s attorney trying to leverage fee-shifting to the tune of hundreds of thousands.  Sometimes, the “easy way out” isn’t always….

For over ten years, Cameron R. Morgan has served the public school districts of the State of New Jersey in the specialized area of school law, representing boards of education in all aspects of their legal needs, with a focus on general counsel services, civil litigation, special education, administrative law, collective negotiations, labor and employment, and appellate practice.  He has served as Board Solicitor to dozens of school districts, guiding district administrators through the diverse range of issues affecting the public schools, from personnel matters, tenure cases, and the range of issues that frequently arise at public board meetings, to student disciplinary matters, residency disputes, and homelessness issues, to complex matters involving the budgetary process or First Amendment rights.

Passage of Chapter 79 places new restrictions on a school district’s ability to subcontract work performed by its existing employees.  Chapter 79, which was approved on September 11, 2020 and became effective immediately, prohibits a school district from entering into a subcontracting agreement affecting the employment of any employees in a collective bargaining unit during the term of an existing collective bargaining agreement (“CBA”). A district may enter into a subcontracting agreement for a period following the term of the current CBA if the district:

1. provides written notice to the majority representative of employees in each collective bargaining unit which may be affected by the subcontracting agreement and to the New Jersey Public Employment Relations Commission (“Commission”) no less than 90 days before the district requests bids or solicits contractual proposals for the subcontracting agreement; and
   
   
2. offers the majority representative of the employees in each collective bargaining unit which may be affected by the subcontracting agreement the opportunity (i) to meet and consult with the district to discuss the decision to subcontract, and (ii) to engage in negotiations over the impact of the subcontracting.

The decision to subcontract is not mandatorily negotiable.  The school district’s obligation to negotiate will not preclude its right to subcontract should no successor agreement exist.  However, all aspects or actions relating to or resulting from a district’s decision to subcontract including, but not limited to, whether or not severance pay is provided, are expressly made mandatory subjects of bargaining by Chapter 79. 

Displaced employees are given certain rights by Chapter 79.  These include retention of previously acquired seniority and recall rights whenever the subcontracting terminates.

A district that violates any provision of Chapter 79 is deemed to have committed an unfair practice which can have significant financial consequences.  Any affected employee or majority representative may bring an unfair practice charge with the Commission.  If the charging party prevails, the employee is entitled to a remedy including, but not limited to, reinstatement, back pay, back benefits, back emoluments, tenure and seniority credit, attorney’s fees, and any other relief the Commission deems appropriate.

On April 20, 2020, the New Jersey Supreme Court issued an important decision regarding a teacher’s right to compensation for unused sick leave at the time of retirement or separation from a board of education. In Barila v. Board of Education of Cliffside Park, the State’s Supreme Court held that the unambiguous terms of the collective bargaining agreement between the teachers’ union and the board of education dictated the right to sick leave compensation upon retirement and such agreement did not violate a vested right.

The Cliffside Park Education Association (“Association”) is the exclusive collective bargaining representative for all teachers employed by the Cliffside Park Board of Education (“Board”). The Association and the Board entered into a collective negotiations agreement in 2012 (“2012 CNA”). The 2012 CNA stated that compensation for unused sick leave at the time of retirement or separation was capped at $25,000. In 2015, the Association and the Board entered into a new CNA (“2015 CNA”), which lowered the cap on unused sick leave to $15,000. The 2015 CNA did not contain a “grandfather” clause.

The Plaintiffs in this case were teachers who accrued more than $15,000 worth of unused sick time. They sued the Board claiming that they had a vested right to unused sick leave compensation up to the $25,000 cap under the 2012 CNA for various reasons, including because they believed they never consented to the new cap of $15,000.

The New Jersey Supreme Court reversed the Appellate Division on this issue and held that the teachers did not have a vested right. As the exclusive representative for the teachers, the Association validly entered into the 2015 CNA with the Board and limited the compensation for unused sick leave to $15,000. A teacher’s right to compensation for unused sick leave only vested when that teacher served the length of time required by the collective bargaining agreement and was retiring or separating from the school district. The 2015 CNA replaced the 2012 CNA, and nothing in the 2012 CNA suggested an additional right to compensation for unused sick leave after the 2012 CNA expired. Therefore, the 2012 CNA did not apply to the teachers, and their right to compensation for sick leave was limited to $15,000 under the 2015 CNA.