Labor & Employment

On August 28, 2018, the New Jersey Appellate Division in West Morris Regional High School Board of Education v. Morris Regional Education Association, affirmed the Public Employment Relations Commission’s (“PERC”) determination that the start and end date of the school calendar is a non-negotiable managerial prerogative.

The dispute involved the collective bargaining agreement (“CBA”) between the West Morris Regional High School Board of Education (“Board”) and the West Morris Education Association (“Association”). During their negotiations of a successor CBA, the Board sought to remove the following phrase from the CBA: “teachers…shall be employed from September 1 through June 30.” The Board argued that this language unlawfully interferes with the Board’s managerial prerogative to establish the school calendar. While the Association conceded that that Board has the managerial prerogative to establish the school calendar for students, the Association argued that the Board must negotiate the teachers’ calendar for the days when students are not present. The Association argued that N.J.S.A. 18A:36-2, which gives the Board the right to establish the school calendar, only applies to student calendars.

The Appellate Division rejected the Association’s narrow interpretation of N.J.S.A. 18A:36-2, reasoning that creating a distinction between a calendar for students and one for teachers undermines the Board’s managerial prerogative. Further, the Appellate Division explained that if the teachers’ calendar were negotiable, then the student calendar would be controlled by it, which further diminishes the Board’s managerial prerogative.

By: Robert A. Muccilli, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

The Public Employment Relations Commission (“PERC”) recently granted interim relief restraining two school districts from requiring that union members file new dues deduction authorizations.

In Delanco Board of Education and Delanco Township Education Association (Docket No. CO-2019-043), school administrators informed the Association President that Board counsel advised that Janus v. AFSCME[1] required the Board to obtain written authorization from all employees in order to continue making membership dues deductions from unit employees’ compensation.  The Superintendent provided the Association President with a copy of a draft letter to the Association’s members requesting the new authorization and represented that the letter had been sent.  However, the letter was not sent.

The Association filed an unfair labor practice charge alleging that the Board’s conduct (1) violated the New Jersey Employer-Employee Relations Act (“NJEERA”) by interfering with employees exercising their rights under the Act and interfering with the formation, existence or administration of the Association; and (2) violated the Workplace Democracy Enhancement Act (“WDEA”) by encouraging members to relinquish membership in the Association and encouraging members to revoke authorization of deduction of fees to the Association.

PERC, in a decision dated September 6, 2018, held that the Association satisfied the standard for granting interim relief.  In doing so, PERC found that the administration’s interpretation of Janus and the New Jersey statute governing dues deduction (N.J.S.A. 53:14-15.9(e)) was mistaken.

PERC reasoned that Janus, which only applies to deductions of representation or agency fees, does not mandate that members who have already authorized membership dues deduction need to reauthorize them in the absence of a revocation.  Hence, PERC ordered that the Board retract its draft letter, not issue any letter or communication to the Association members soliciting or requiring them to reauthorize membership dues deductions, cease from engaging in any conduct to encourage members to revoke authorization of dues deductions, and desist from encouraging or discouraging employees from joining, forming or assisting the Association.

The Delanco decision follows a similar ruling by PERC on August 31, 2018 in Woodland Township Board of Education and Chatsworth Education Association (Docket No. CO-2019-047).  In Woodland, the school district actually sent a letter demanding a new dues deduction authorization.  The Association charged violations of the NJEERA and WDEA.

PERC held that the Association had met the standard for interim relief.  It issued an order that the Board:  (1) immediately retract the letter sent to Association members by promptly informing them in writing that no new authorization of dues is required and that their authorization shall continue unless and until the Board receives timely notification expressing the members desire to withdraw from Association membership; (2) cease from engaging in any conduct to encourage negotiations unit members to revoke authorization of dues deductions to the Association; and (3) desist from encouraging or discouraging employees from joining, forming or assisting the Association.

PERC’s rulings announce the agency’s interpretation of the scope and limits of the Janus decision and highlight the importance of considering the provisions of the WDEA when confronting questions pertaining to dues deduction authorization and revocation.

[1] On June 27, 2018, the Supreme Court of United States ruled that the First Amendment rights of non-union workers are violated when they are compelled to pay union fees against their will.

By: Kelly E. Adler, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

If you are a New Jersey employer and you have never heard of the Diane B. Allen Equal Pay Act (“Equal Pay Act”), pay close attention. At the end of March 2018, the New Jersey Legislature sent the Equal Pay Act to the Governor of New Jersey, Phil Murphy, for his signature.  Governor Murphy signed the bill into law on April 24, 2018.  The Equal Pay Act will go into effect on July 1, 2018.

Why is this legislation such a big deal for New Jersey employers? This is sweeping legislation and is the most comprehensive in the country. The Equal Pay Act is actually an amendment of the New Jersey Law Against Discrimination. Although it is generally mentioned as an equal pay measure to fix the gender pay gap, this legislation will actually prohibit pay gaps among all protected classes covered by the New Jersey Law Against Discrimination. The protected classes under the New Jersey Law Against Discrimination are significantly broader than under federal anti-discrimination statutes and include: race, creed, color, national origin, nationality, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or liability for service in the armed forces.

Additionally, a prevailing Plaintiff will be entitled to treble damages. This means a winning Plaintiff could be entitled to THREE TIMES the damages actually suffered, in addition to also being entitled to attorneys’ fees. The Equal Pay Act also provides for a six year statute of limitations that re-starts every single time the employee receives a paycheck that violates the law.   Note also, that employers cannot cut the salaries of higher paid employees to make up the pay gap.

There are some exceptions. An employer can pay different salaries if the employer demonstrates that the differential is made pursuant to a seniority system or a merit system or the employer demonstrates:

(1) That the differential is based on one or more legitimate, bona fide factors other than the characteristics of members of the protected class, such as training, education or experience, or the quantity or quality of production;

(2) That the factor or factors are not based on, and do not perpetuate, a differential in compensation based on sex or any other characteristic of members of a protected class;

(3) That each of the factors is applied reasonably;

(4) That one or more of the factors account for the entire wage differential; and

(5) That the factors are job-related with respect to the position in question and based on a legitimate business necessity. A factor based on business necessity shall not apply if it is demonstrated that there are alternative business practices that would serve the same business purpose without producing the wage differential.

What should New Jersey employers be doing now? Well for starters, employers should be reviewing their employees’ salaries for any discrepancies in pay among members of protected classes that perform substantially similar work. If employers do discover a pay gap that is not attributable to one of the exceptions outlined above, employers need to prepare to close the pay gap quickly in order to prevent costly litigation and the potential for negative publicity. It is recommended that New Jersey employers contact their accountants and attorneys to discuss how to ensure compliance with the Equal Pay Act.

A school district staff member was a teacher and former wrestling coach employed by the Hunterdon Central Regional School District Board of Education (“Board”). He was the subject of a harassment, intimidation, and bullying investigation (“HIB”) due to a complaint that during a wrestling camp he stated to a special education student, on two occasions, that he hoped the student did not have access to any weapons or keys to the gun closet. The school district determined that the teacher’s actions constituted HIB. As a result of a series of appeals, the New Jersey Appellate Division on March 1, 2018 in S.G. v. Hunterdon Central Regional School District Board of Education affirmed the Commissioner of Education’s (“Commissioner”) decision to remand the matter to the Board for further proceedings.

The school district’s finding of HIB was reported to the Board. After receiving the results of the HIB investigation, the teacher requested a hearing before the Board. However, the Board denied the request. Instead, the Board offered the teacher an opportunity to make a statement at the next Board meeting. The teacher objected to the lack of hearing and did not attend the Board meeting. At the next Board meeting, the Board affirmed the finding of HIB against the teacher and terminated him from all coaching activities.

The teacher appealed the decision to the Commissioner, who referred the matter to the Office of Administrative Law, which was heard by an ALJ. Based on stipulated facts, the ALJ determined that the teacher made the statements. The ALJ also found that the teacher was entitled to a hearing before the Board as required by the New Jersey Anti-Bullying Bill of Rights Act (“Act”) involving HIB complaints. The ALJ further determined that this was a denial of due process warranting an expungement of any reference to HIB from the teacher’s personnel file.

The Board filed exceptions with the Commissioner, who agreed with the ALJ except on the issue of remedy. The Commissioner disagreed that the teacher’s personnel record should be expunged as a result of the Board’s failure to hold a hearing. Instead, the Commissioner determined that the proper remedy is to remand the matter to the Board for a hearing.

The teacher appealed to the Appellate Division, which affirmed the Commissioner’s decision. The Appellate Division rejected the teacher’s argument that the Commissioner’s decision was arbitrary, capricious, and unreasonable because N.J.S.A. 18A:37-15(b)(6)(d) afforded him such a hearing and the remedy was appropriate. The Appellate Division also rejected the teacher’s argument that he would not receive due process if he were to have a hearing before the Board because many years have passed and the Board is hostile to the teacher. The Appellate Division did not find any evidence to support the teacher’s arguments.

In short, this case serves as a reminder that school districts and boards of education must adhere to all aspects of the Anti-Bullying Bill of Rights Act, including procedural requirements.

By: Robert A. Muccilli, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

Educational service commissions sometimes employ part-time teachers to work in public and non-public schools. The Sussex County Educational Services Commission (“Commission”) reduced the number of hours worked by part-time teachers but did not alter the hourly rate of pay. In Zimmerman et al. v. Sussex County Educational Services Commission two teachers challenged the action arguing that their tenure and seniority rights were violated. The Commissioner of Education (“Commissioner”) sided with the Commission by determining that the decrease in work hours did not reduce the teachers’ compensation or trigger their seniority rights under the New Jersey Tenure Act because the hourly rates did not decrease. The teachers appealed.

The Appellate Division, in a published decision issued on February 13, 2018, reversed the Commissioner’s decision. In doing so, the Appellate Division explained that the Commissioner’s focus on the absence of a reduction in hourly rates and the lack of a minimum number of guaranteed hours in the contract documents was misplaced. The Appellate Division emphasized that the touchstone is the Tenure Act and explained that part-time teachers are eligible for tenure if they meet the requirements for acquisition of tenure under the Act.

However, two significant questions remain, namely (1) whether the reduction in hours reduced the teachers’ compensation under N.J.S.A. 18A:28-5, and (2) whether the reduction in hours triggered seniority rights. The Court remanded the matter for further proceedings in accordance with its instructions on how to calculate compensation in a situation where work hours fluctuate from year to year based upon service needs.

This is a case to watch because the ultimate disposition could have an impact beyond educational service commissions.

On August 17, 2017, the New Jersey Appellate Division issued an unpublished opinion in which it upheld the Atlantic City Board of Education’s (“Board”) decision to change the employment of two supervisors from twelve-month positions to ten-month positions due to a reduction in force (“RIF”). This case highlights an important interplay between RIFs and tenure rights of public school employees.

The Board employed Lourdes Vidal-Turner and C. Dedra Williams (“Petitioners”) as teachers for numerous years. The Board then promoted each of them to a twelve-month supervisory position in which they later acquired tenured. The State Appointed Fiscal Monitor for the Board instituted a RIF effective July 1, 2015 resulting in the elimination of Petitioners’ twelve month positions. The Board reassigned them to ten-month positions. As a result, their salaries were reduced.

In September 2015, Petitioners appealed the Board’s action to the Commissioner of Education (“Commissioner”), which was then transferred to an Administrative Law Judge (“ALJ”). Petitioners argued before the ALJ that the Board violated their tenure and seniority rights by changing their salaries to 10/12ths of their pre-RIF salaries. Petitioners argued that the Board should have compensated them at the monthly rates of their pre-RIF salaries. The ALJ ruled in favor of the Board, which the Commissioner affirmed in June 2016.

Petitioners then appealed the Commissioner’s decision to the Appellate Division. Petitioners conceded that N.J.S.A. 18A:28-9 authorized the Board to implement a RIF for reasons of economy. Petitioner further acknowledged that the RIF in this case was legitimate. Instead, Petitioners argued that N.J.S.A. 18A:28-5 regarding tenure rights precluded the Board from reducing the compensation of Petitioners below their monthly rate.

The Appellate Division rejected Petitioners’ argument and declined to interpret the tenure statutes as requiring a board of education to compensate a tenured employee who has been RIFed from a twelve-month to a ten-month position at their prorated pre-RIF salary. The Appellate Division concluded that Petitioners’ argument “renders an absurd result because it would limit the ability of the school board to exercise its judgment to allocate resources for reasons of economy.”

By: Robert A. Muccilli, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

The New Jersey Supreme Court on August 3, 2017 decided In re County of Atlantic in which it held that the salary increment systems in collective bargaining agreements between two public entities, Atlantic County and the Township of Bridgewater, and their respective FOP and PBA unions remained in effect after the agreements’ expiration dates. The County and Township were required to pay salary step increases during the period between the expiration of those contracts and the formation of their successor agreements. Accordingly, the Court upheld the Appellate Division’s ruling in favor of the unions.

The Court’s decision was grounded on contract provisions touching on continuation of benefits.  Significantly, the Court indicated that it did not need to determine whether, as a general rule, an employer must maintain the status quo while negotiating a successor agreement. That may be an issue for another day. Instead, the Court relied on basic contract principles and review of contract provisions gleaned from the two cases. Several clauses of the contracts captured the Court’s attention.

• “all provisions of this Agreement will continue in effect until a successor Agreement is negotiated.”
• “all terms and conditions of employment, including any past or present benefits, practices or privileges which are enjoyed by the employees covered by this Agreement that have not been included in this Agreement shall not be reduced or eliminated and shall be continued in full force and effect.”
• “this agreement shall remain in full force and effect during collective negotiations between the parties beyond the date of expiration set forth herein until the parties have mutually agreed on a new agreement.”

In addition to the contract provisions, the Court explained that there was a consistent past practice of paying increments upon expiration of the agreements.

The Court advised that had the public entities negotiated clear contractual language leaving no room for confusion, they could have avoided paying the increment upon expiration of the agreement.  As an example, the Court referred to a collective bargaining agreement in the Ho-Ho-Kus School District in which the parties “agree that in the absence of a contractual settlement for a successor agreement prior to June 30, 2015, increments for certified personnel shall not be automatic (i.e., increments shall not be paid unless and until the parties agree to a successor contract).”

The Court suggested that “parties would be wise to include explicit language indicating whether a salary guide will continue beyond the contract’s expiration date.” It explained that had the agreements been silent about whether the terms of the salary increment system were to continue, the issue in the appeals before it would be more complicated, stating  “It might well have required careful consideration of past practices, custom and viability of the dynamic status quo doctrine.”

While this decision did not involve a school district, the Court’s decision appears to have broad ramifications in terms of potential exposure for payment of increment upon expiration of an agreement and with respect to contract negotiations. Hence, school districts should review their collective bargaining agreements and past practices with this issue in mind.

On May 18, 2017, the Commissioner of Education in Strassle v. Old Bridge Township Board of Education affirmed the decision of the Administrative Law Judge that tenured teacher Thomas Strassle was entitled to pay during his suspension even though he had collected unemployment benefits during the suspension.

Strassle was a tenured teacher employed by the Old Bridge Township Board of Education (“Board”). In September 2015, the Board placed him on a paid suspension pending an investigation of his conduct pursuant to N.J.S.A. 18A:6-8.3. Thereafter, in April 2016, the Board certified tenure charges against Strassle and converted his suspension to an unpaid status for 120-days pursuant to N.J.S.A. 18A:6-14. The 120-days expired on September 1, 2016, at which time Strassle was placed back on a paid suspension while the parties litigated the tenure charges. Meanwhile, Strassle applied for and received unemployment compensation during the summer months of his suspension.

On October 5, 2016, an arbitrator ruled that Strassle should not be terminated from his position but that he should receive a loss of pay of 120 days, which was the pay already withheld following the certification of the tenure charges. The arbitrator’s decision described Strassle’s penalty as a “forfeiture of the 120 days of pay.”

On November 30, 2016, the Board stopped paying Strassle’s salary. The Board argued that Strassle improperly collected unemployment benefits during the summer months while he was suspended. In addition, as a 10-month teaching staff member, Strassle would not be paid during the summer. Further, the Board interpreted the arbitrator’s decision that “forfeiture of pay” meant all compensation, including any unemployment compensation received.

Unfortunately for the Board, the Administrative Law Judge (“ALJ”) rejected the Board’s arguments. Specifically, the ALJ determined there is no exception to the 120-day suspension under N.J.S.A. 18A:6-14. Therefore, the arbitrator could not have awarded the result sought by the Board. Moreover, the ALJ reasoned that N.J.S.A. 18A:6-14 does not regulate compensation that an employee may receive while on suspension. For these reasons, the ALJ required the Board to pay back Strassle’s salary from November 30, 2016 through the date of the ALJ’s decision.

After the ALJ issued his ruling, the parties did not file exceptions. The Commissioner of Education then affirmed the ALJ’s decision.

On March 30, 2017, the New Jersey Commissioner of Education (“Commissioner”) in Chiodi v. Eitner affirmed an Administrative Law Judge’s (“ALJ”) decision dismissing cases brought by three teachers against Superintendent Jason Eitner of the Waterford Township Board of Education (“Board”) due to a failure to state a claim upon which relief can be granted. The teachers sought to revoke the Superintendent’s certificate for conduct unbecoming based on allegations of sexual harassment, age discrimination, and bullying. In short, the cases were dismissed for lack of jurisdiction.

The teachers alleged that the Superintendent discriminated against them, invaded their privacy, and violated school policies prohibiting harassment, intimidation and/or bullying (“HIB”). For these reasons, the teachers sought to remove the Superintendent’s certificate. While one of the teachers initiated a grievance against the Superintendent, no appeal was filed. In response to the allegations of harassment and discrimination, the Board conducted an affirmative action investigation. None of the teachers filed a HIB complaint under the Anti-Bullying Bill of Rights statute.

The ALJ determined that even if the teachers’ allegations were true, they did not amount to a cause of action under the school laws against the Superintendent. Specifically, an action to remove an administrator must be brought under the tenure provisions of Title 18A:6-10. Moreover, an action against an administrator of the school for action relating to their position in the school must be brought via a grievance and then an appeal from that grievance, which is also beyond the jurisdiction of the Commissioner.

In affirming the ALJ’s decision, the Commissioner reasoned that the authority to revoke or suspend the certificates of teachers or administrators lies exclusively with the State Board of Examiners pursuant to N.J.S.A. 18A:6-38 and N.J.A.C. 6A:9B-4.5. Moreover, this case was not an appeal of an HIB determination, nor would an HIB allegation be appropriate in this circumstance as the statute does not permit HIB complaints from school employees – only students.

For these reasons, the Commissioner agreed with the ALJ and affirmed the dismissal of the teachers’ petitions for lack of jurisdiction.

On March 2, 2017, the New Jersey Appellate Division issued an unpublished decision in Hillsborough Township Board of Education v. Hillsborough Township Education Association in which it affirmed the Public Employment Relations Commission’s (“PERC”) determination that an issue involving tuition reimbursement was preempted by statute and therefore not arbitrable. This case arose from employees whose requests for tuition reimbursement were denied because the courses were not related to the employees’ current or future job responsibilities pursuant to N.J.S.A. 18A:6-8.5.

In 2013, four individuals employed by the Hillsborough Township Board of Education (“Board”) sought tuition reimbursement from the Board for various courses and seminars they pursued. When their requests were denied, they filed a grievance. In March 2014, the Board found that the courses do not apply to the employees’ current or future job responsibilities and therefore denied the requests.

Thereafter, the Hillsborough Township Education Association (“HTEA”) filed a Request for Submission to a Panel of Arbitrators with PERC on behalf of the employees. In response, the Board filed a Petition for Scope of Negotiations Determination arguing that N.J.S.A. 18A:6-8.5 preempts arbitration on this issue. PERC agreed with the Board, and the HTEA appealed PERC’s decision to the Appellate Division.

On appeal, PERC reviewed the plain meaning of N.J.S.A. 18A:6-8.5, which provides, in pertinent part:

In order for a board of education to provide to an employee tuition assistance for coursework taken at an institution of higher education or additional compensation… [t]he tuition assistance or additional compensation shall be provided only for a course or degree related to the employee’s current or future job responsibilities.

In addition, N.J.S.A. 18A:6-8.5 requires that the employee obtain approval from the Superintendent prior to enrolling in the course for which he or she seeks tuition assistance. If the request is denied, the employee may appeal such denial to the board of education. Moreover, the Appellate Division relied upon Borough of Keyport v. International Union of Operating Engineers, 222 N.J. 314 (2015) for the proposition that a subject which is fully or partially preempted by statute or regulation is not negotiable and therefore not arbitrable.

Accordingly, the Appellate Division reasoned that N.J.S.A. 18A:6-8.5 is a mandatory statute that expressly sets a limit on whether tuition assistance is available. Further, the Appellate Division found that the statute leaves nothing to the discretion of the Board as the public employer. Therefore, the issue cannot be subject to negotiations or arbitration.

The Appellate Division also advised that rather than filing a grievance, an employee would first need to challenge the Superintendent’s denial of the tuition reimbursement request to the board of education as set forth in N.J.S.A. 18A:6-8.5(b). Thereafter, any further appeal could be filed with the Commissioner of Education.