A board of education is vested with the statutory authority to enact layoffs, or a reduction in force, under certain circumstances.
Boards can reduce staff, including teaching staff members, “for reasons of economy or because of reduction in the number of pupils or of change in the administrative or supervisory organization of the district or for other good cause…” However, there are a number of statutory requirements and new developments that boards must be aware of prior to implementing a RIF.
Seniority for Tenured Staff When a board administers a RIF, it is legally required to determine the seniority of the affected tenured teaching staff members and must also notify the affected teaching staff members as to their seniority. Seniority rights entitle a tenured employee to a position over another tenured employee pursuant to a RIF. Seniority is a mechanism for ranking all tenured teaching staff members so that reductions among the tenured force can be implemented in an equitable fashion and in accord with sound educational policies. Thus, the tenured staff member with the lowest seniority would be RIF’d first, followed by the tenured staff member with the next lowest seniority.
Seniority is determined according to the number or fraction of academic or calendar years of employment in the school district in specific categories. The periods of unpaid absences not exceeding 30 calendar days aggregated in one academic or calendar year, leaves of absences at full or partial pay, and unpaid absences granted for study or research, except for leaves of absence or suspension resulting from confirmed discipline, all must be credited toward seniority. All other unpaid absences or leaves of absence do not receive seniority credit.
Notice of RIF With the exception of subcontracting (discussed below), no statute or regulation mandates the amount of notice to employees. However, because the amount of notice is a negotiable term and condition of employment, RIF procedures may be contained in collective bargaining agreements or board policies.
Recall List Upon a RIF, the dismissed tenured teaching staff member’s name is placed on a preferred eligible list for recall. The individual’s name is in order of seniority for re-employment whenever a vacancy occurs. The individual remains on the list indefinitely until a position that he or she has seniority in is offered. If the individual declines the position, the employee is removed from the list. If the list includes two individuals with equal seniority, the board has the discretion to employ through policy, a method to break the tie, such as a lottery or use of certain policy-based criteria.
Bumping Rights A tenured employee who is subject to a RIF, and who has no immediate seniority claim, may have an immediate tenure entitlement to a position currently held by a nontenured person, if the tenured teaching staff member has tenure in that other position and the appropriate endorsements to serve. For example, in Capodilupo v. West Orange Bd. Of Educ., a RIF’d tenured secondary physical education teacher was entitled to reinstatement to an elementary physical education position held by nontenured teachers. In Barbara Russo v. Board of Education of Warren Hills Regional School District, a full-time, tenured music teacher reduced to part-time as part of a RIF was not entitled to other, nonmusic elementary school teaching positions held by nontenured or less senior teaching staff members.
Recent Decisions There have been a number of recent cases dealing with RIFs that help clarify the above requirements. In DeGraff v. Belleville Board of Education, the board eliminated the entire dance program in 2016. Ms. DeGraff, who was tenured, served as the only certificated teacher of dance. Ms. DeGraff asserted that her tenure rights were violated, and that the abolishment of the dance program violated the New Jersey Student Learning Standards. In September 2018, the commissioner held that the NJSLS required that dance instruction be made available to all K-12 students, and remanded the matter back to the Office of Administrative Law. On remand, the administrative law judge held that the board failed to meet its obligations under the standards to offer dance instruction. The ALJ further held that while the board had the right to abolish Ms. DeGraff’s position, it did not have the authority to abolish the subject she taught. The commissioner affirmed and the board was required to restore the dance program and to reinstate Ms. DeGraff retroactive to RIF with back pay, benefits and emoluments.
In Lucky v. Englewood Board of Education, Mr. Lucky held a standard Educational Services Certificate endorsed as both a substance abuse coordinator and a school social worker. Mr. Lucky worked for the board exclusively as a substance abuse counselor. In May 2017, the board notified Mr. Lucky that his employment would be terminated in June 2017 due to a staff reorganization and a RIF. The RIF occurred in the aftermath of a decision to eliminate the full-time substance abuse counselor position and instead have a dual substance abuse counselor/school counselor position. Since Mr. Lucky did not have a school counselor certification, the board hired an outside candidate who held both certifications. The administrative law judge held that the board was statutorily authorized to reduce its ranks and/or reorganize the delivery of services to its students. The Ajudge further determined that the board presented valid educational reasons for creating the dual position, which promoted efficiency and the delivery of better integrated services. The commissioner affirmed the decision.
In Carsdale, et als. v. Princeton Board of Education, several full-time high school teachers challenged the board’s decision to stop offering them the option to work an additional sixth period each day in lieu of their scheduled duty period for the 2019-2020 school year. The collective bargaining agreement provided for a daily teaching load of five periods, but that in cases of identified need, the administration and union could agree to a sixth teaching period in lieu of a duty period. The teachers argued that the board’s action violated their tenure rights and impermissibly reduced their compensation and pensionable income. The commissioner held that the board had discretion to implement the RIF. However, because the commissioner found that teachers could earn tenure in the sixth period position title, any teacher who had earned tenure in the sixth period positions was to be placed on a preferred eligibility list. The commissioner also ordered that a seniority analysis be conducted regarding all sixth period teachers for the 2019-2020 and 2020-2021 school years.
In Trenton Education Association v. Trenton Board of Education, the union and several employees challenged the board’s 2016 RIF, which included the abolishment of the individual petitioners’ occupational, physical and speech-language therapy positions. The board contracted with an educational services commission for the services provided to its students, and in turn, the educational services commission used private providers to deliver services. The parties filed cross-motions for summary decision. The commissioner held that the board was entitled to summary decision because the RIF was not arbitrary, capricious, or unreasonable, was not undertaken in bad faith, and the board’s actions were consistent with N.J.S.A. 18A:6-63 and N.J.A.C. 6A:14-5.1(c). The commissioner further dismissed the claim by the nontenured speech language therapist noting that a board has virtually unlimited discretion in hiring or renewing nontenured staff. In addressing the final issue of whether the union could continue its claim regarding the validity of the board’s contract with the educational services commission for speech language services, it was held that the commissioner lacked jurisdiction to determine if and how the limitation on a board’s ability to contract with private providers for speech-language services was applicable to the board’s contract with the educational services commission, and whether that contract was valid.
Non-Certificated Staff Members Traditionally, boards have had substantial discretion in making employment decisions concerning non-certificated employees. While secretaries can acquire tenure, there is no statutory seniority for secretaries (although there may be contractual seniority rights for secretaries). Janitors may earn tenure in certain circumstances, and would be subject to a RIF in preference to any other tenured janitor having a longer term of service. The dismissed janitors are placed on a preferred eligibility list in the order of years of service. However, for the most part, boards of education have had almost unfettered ability to terminate a nontenured, non-certificated staff member, either by way of a reduction-in-force, nonrenewal, or disciplinary action, so long as its decision was not arbitrary, capricious, or unreasonable.
This principle has drastically changed as the Legislature recently provided significant protections to non-certificated staff members.
In particular, two newly enacted laws allow non-certificated staff members the right to: (1) challenge before an arbitrator decisions that negatively impact their employment; and (2) make it far more difficult for the board to outsource these jobs. The practical impact of these laws is significant. Outsourcing has long been a means for boards that are struggling with immense economic constraints to achieve financial relief. This will result in boards having to resort to other means to meet their monetary obligations. Boards also will be spending substantially more resources to defend its decisions to take disciplinary action, including non-renewals and terminations, related to its non-certificated staff members.
Non-Certificated Staffs’ Right to Arbitration (P.L. 2020, c. 66) Signed into law by Gov. Murphy, P.L. 2020, c. 66 (“Chapter 66”), allows all nonteaching staff members in public schools to arbitrate any “disciplinary action.” The law is exceedingly broad in its application. It applies to all board employees who are “not a teaching staff member,” which the law defines as all non-certificated employees. As the bill’s sponsors noted, the purpose of the bill was to provide such employees as “drivers, custodians, cafeteria workers and many other staff members [who] make critical contributions to school functionality,” protections similar to those provided to teachers.
Chapter 66’s definition of “discipline” also is broad. It includes, without limitation, all “reprimands, withholding of increments, termination or nonrenewal of an employment contract, expiration or lapse of an employment contract or term, or lack of continuation of employment.” As a result, this definition includes actions that courts previously held to be nondisciplinary in nature, such as the nonrenewal of an employment contract.
The protections afforded to non-certificated staff are substantial. All non-certificated employees now have the right to submit to binding arbitration any of the aforementioned actions by the board. In the arbitration, the board has the burden to prove it had “just cause” in taking the disciplinary action. As the law’s sponsors noted, Chapter 66 allows these employees to challenge “whether any disciplinary action taken against them is fair and necessary” before an arbitrator.
The law is a substantial change to the longstanding legal principles and statutes that permitted school districts to effectively manage their workforce. For example, previously boards only were required to notify paraprofessionals whether or not they would be renewed for the upcoming academic year by May 15. The only ability to challenge this decision was for the employee to file a petition before the education commissioner. The employee had the burden to show the board’s decision was arbitrary, capricious, or unreasonable.
In sum, Chapter 66 allows all non-certificated board employees to submit all disciplinary actions to binding arbitration. The reason provided by the board — even if it is purely budgetary or economical (such as during a reduction in force) — will not prevent the matter from proceeding to arbitration and having an arbitrator decide whether the board had “just cause” in making its decision. Practically speaking, boards will be forced to exert considerable financial and administrative resources to defend decisions. This includes having administrators take time away from their educational responsibilities to prepare for the arbitration and testify on behalf of the board during the arbitration. The result is that many boards no longer will take actions they believe are in the best interest of their students as they will conclude it is not worth the time, cost and resources to defend the decision.
Restrictions on Outsourcing (P.L. 2020, c. 79) Traditionally, outsourcing certain noninstructional programs and services has been an avenue boards of education have chosen when necessary to meet budgetary restraints. Boards were provided substantial latitude in entering into subcontracting agreements with private companies in such areas as paraprofessional and custodial services. As these decisions almost always were financial (providing substantial cost savings to the board) or educational, courts determined that boards had the managerial prerogative to implement a reduction-in-force and outsource certain positions.
Prior to the newly-enacted legislation, there were limited requirements boards had to meet in to privatize a position. This included notifying its employees of the decision and allowing the impacted employees to revise their terms and conditions of employment in an attempt to convince the board not to outsource the position. This typically meant that boards would meet with union representatives and the union would submit a proposal that provided the board with cost savings or other benefits, such as by amending their salary, benefits, or working hours. The board had complete discretion to accept or reject this proposal. If the board followed these simple statutory requirements, the employees’ only recourse was to challenge the decision before the commissioner as arbitrary and capricious (typically claiming anti-union animus).
P.L. 2020, c. 79 drastically changed the flexibility provided to boards of education when outsourcing or subcontracting services. Traditionally, boards had the ability to outsource services at any time. This meant that if the board ran into a budgetary shortfall due to an unexpected issue during the middle of a school year, it reserved the right to privatize certain services to meet its financial needs. The new law drastically restricts when outsourcing can take place. The law prohibits boards from entering into a subcontracting agreement while an existing collective negotiations agreement is in effect. Most boards of education enter into agreements with their unions that last between three and five years. As a result, most boards would be prohibited from subcontracting for years at a time.
The law also creates a number of procedural hurdles boards must overcome prior to subcontracting. Most critically, boards must provide the union with three-month advance written notice before it can seek bids for the services. This requirement, when coupled with the limitation that subcontracting can only occur upon expiration of a collective negotiations agreement, greatly restricts the timing of when boards can subcontract for services. It further requires substantial preparation by the board.
Similar to the prior law, the new law requires that the board meet with the union to discuss the decision to subcontract and provide the union the opportunity to convince the board not to subcontract. However, the new law also adds the additional requirement that the board must “engage in negotiations over the impact of subcontracting.” This likely includes negotiations over whether severance will be paid by the board. Employees who are dismissed as a result of their services being subcontracted retain previously acquired seniority and are provided “recall rights” should the subcontracting agreement terminate.
Finally, the law makes a number of areas a mandatory subject of negotiations. This includes “all aspects or actions relating to or resulting from [the board’s] decision to subcontract.” Explicitly included in the law is that severance pay has become a mandatory subject of negotiations.
Boards that fail to follow these rigid procedures will face severe repercussions. Boards will be “deemed to have committed an unfair practice.” Employees impacted by improper subcontracting will be reinstated and provided with back pay and back benefits. The board will also be responsible for the employees’ attorney fees.
As always, it is recommended that you consult with your board attorney for questions on specific situations.
David L. Disler is an attorney with Porzio, Bromberg & Newman, and Adam S. Herman is an attorney with Adams Gutierrez & Lattiboudere.
