On November 9, 2018, the New Jersey Commissioner of Education (“Commissioner”) concurred with an Administrative Law Judge’s finding in Mirda v. Board of Education of the Union County Educational Services Commission that the position of Bedside Tutor fell within the substitute teacher exception and is not eligible for tenure accrual. The Union County Educational Services Commission Board of Education (“Commission”) provides various services to school districts in Union County, including one-to-one bedside instruction at hospitals to students enrolled in Union County schools. Bedside Tutors are paid at an hourly rate, do not receive benefits or paid holidays, and are not guaranteed a certain number of work hours/days or yearly salary.
Gail Mirda, the Petitioner in this matter, was employed by the Commission as a Bedside Tutor for fifteen years. While her work hours varied, she worked about six to eight hours per day for the last seven years. Petitioner argued that because she worked more than three full-time years in the Bedside Tutor position, which required a teacher certification, she is entitled to tenure pursuant to N.J.S.A. 18A:28-5. She also argued that the substitute teacher exception under N.J.S.A. 18A:16-1.1 did not apply because she was not replacing a specific employee of the Commission.
The Administrative Law Judge (“ALJ”) summarily rejected Petitioner’s arguments. In short, the ALJ analogized the Bedside Tutor position to that of a Home Instructor and followed a series of cases in which Home Instructors were determined not to be tenure-eligible because their positions and responsibilities fell within the substitute exception to the Tenure Act. Bedside Tutors, like Home Instructors, substitute for a regular classroom teacher due to a student’s inability to attend school and are not regular teaching staff members. The ALJ reasoned that Petitioner was not required to substitute for a specific employee of the Commission in order to escape the substitute teacher exception. As such, Petitioner was not entitled to tenure accrual in the position of Bedside Teacher.
