Gov. Phil Murphy on April 11 signed legislation aimed at protecting children, by preventing school employees with a history of sexual abuse or misconduct against students from easily moving from one job to the next.
The measure, S-414/A-3381 (P.L.2018, c.5), requires school districts to review the employment history of job applicants to ascertain if they have any past allegations or instances of child abuse or sexual misconduct against students. It explicitly prohibits such employers from hiring a person serving in a position involving regular contact with students unless the employer conducts a review of the employment history of the applicant by contacting former and current employers and requesting information regarding child abuse and sexual misconduct allegations.
When seeking employment in a school setting, applicants will be required to answer three questions regarding whether the applicant has ever:
- Been the subject of any child abuse or sexual misconduct investigation by the employer, law enforcement, or any state agency (unless the allegations were false or the incident was not substantiated);
- Been disciplined, discharged, non-renewed, asked to resign, etc. while allegations were pending/under investigation, or due to an adjudication/finding; or
- Had a license/certification suspended while allegations were pending/under investigation, or due to an adjudication/finding.
A prospective employer would then be required to contact the applicant’s former employers (limited to those with whom the applicant had an employment relationship in the previous 20 years) to ascertain whether the applicant’s answers to the questions are accurate. If an applicant or previous employer provides an affirmative response to any of the questions, the prospective employer would need to follow up with the former employer and obtain additional information before making a hiring decision.
An applicant must provide written authorization that authorizes disclosure of the information requested by a prospective employer and releases the applicant’s former and current employers from any liability arising from such disclosure. Prospectively, the measure also prohibits confidential separation agreements between school districts and employees that would have the effect of suppressing any information related to investigations or findings of sexual misconduct or child abuse by an employee.
The new law goes into effect on June 1, 2018.
NJSBA supported the legislation in its final form as it seeks to protect the health and well-being of New Jersey’s school-age children. Throughout the legislative process, the NJSBA requested and successfully obtained several amendments aimed at protecting boards of education from potential legal liability when making personnel decisions, as well as provisions intended to facilitate smooth implementation. Such amendments include allowing an employer to hire an applicant on an emergent basis while conducting the review of his or her employment history; establishing a 20-year (rather than indefinite) “lookback” limitation in reviewing an applicant’s employment history; and directing the New Jersey Department of Education (NJDOE) to play a more active role in providing assistance and guidance to employers and applicants.
The NJDOE is required to establish a public awareness campaign to publicize the new law’s requirements and to ensure both applicants and employers are aware of their respective rights and responsibilities. The department will also post on its website guidance documents, standardized forms and any other informational materials that will help facilitate implementation and compliance with the law.
Bevy of School-Related Bills Sent to Governor
On Thursday, April 12, both the General Assembly and Senate held voting sessions and sent several school-related bills to Gov. Murphy for his consideration. The governor has 45 days to sign them into law, veto them outright, or send them back to the Legislature with recommended changes via conditional veto. The following measures have now passed both houses and are on the governor’s desk.
“Janus” Bill A-3686/S-2137, entitled the “Workplace Democracy Enhancement Act,” requires public employers to provide employee unions with access to members of their negotiations units. The legislation is a direct response to a pending United States Supreme Court case, Janus v. AFSCME, which concerns the constitutionality of public sector union “agency shop” or “fair share” fees. A ruling against the union, which is expected to come down this June, could potentially cause a significant drop in union membership and subsequent loss of revenue to unions.
The rights of the organization required by the bill include:
- The right to meet with individual employees on the premises of the public employer, during the work day, to investigate and discuss grievances, workplace-related complaints, and other workplace issues;
- The right to conduct worksite meetings during lunch and other non-work breaks, and before and after the workday to discuss workplace issues, collective negotiations, the administration of collective negotiations agreements, other matters related to the duties of the organization, and internal union matters involving the governance or business of the organization; and
- The right to meet with newly-hired employees, without charge to the pay or leave time of the employees, during new employee orientations, or at individual or group meetings.
Under the bill, a public employer would be required to provide the union the following information about any new employee: name, job title, worksite location, home address, work telephone number, date of hire, work email address, and any personal email address and home and personal cellular telephone numbers on file with the public employer. Public employers are also required to provide updates to that information every 120 days.
The bill also grants employee organizations the right to use the public employer email systems to communicate with their members, and government buildings to meet with their members, regarding negotiations and administration of collective negotiations agreements, grievances and other workplace-related complaints and issues, and internal organization matters. Such meetings may not be for the purposes of supporting or opposing candidates for partisan political office or distributing literature regarding partisan elections.
The legislation also prohibits a public employer from encouraging employees to resign, relinquish membership in an employee organization, or revoke authorization of the deduction of fees to an employee organization, or encouraging or discouraging employees from joining, forming or assisting an employee organization. Violations are regarded as an unfair practice, and, upon a finding that the violation has occurred, the Public Employment Relations Commission is directed to order the public employer to make whole the employee organization for any losses suffered by the organization as a result of the unfair practice.
Lastly, the bill modifies the procedures for an employee to withdraw authorization for payroll deduction of fees to employee organizations. The bill provides that an employee may do so by providing written notice to their public employer during the 10 days following each anniversary date of the employee’s employment, and the public employer is then required to inform the employee organization of the withdrawal. A withdrawal would take effect on the 30th day after the anniversary date.
The NJSBA, along with its partners at the League of Municipalities, the N.J. Association of Counties, and the N.J. Association of State Colleges, have strong concerns with the legislation, which have been expressed to the Legislature. The NJSBA urged the Legislature to consider the adverse impact the legislation would have on the operations of local school districts, as well as its interference in the traditional collective bargaining process that aims to maintain a delicate balance between the rights and obligations of New Jersey’s public employers and employees. The Association believes the measure constitutes an overreach into matters that have traditionally been addressed through the collective negotiations process. By establishing strict, minimum parameters regarding the rights of unions and the responsibilities of employers to provide certain access and information to such unions, the bill intrudes into matters that are currently, and should remain, subjects of collective negotiations.
For example, the measure essentially grants unions unfettered access to public employees on school district property. The bill’s provisions are overly prescriptive and do not take into account the distinct characteristics, conditions and priorities of individual communities. The NJSBA does not dispute that unions have the right to meet with and discuss matters of employment with the employees they represent, whether on or off school property. Our members also respect this right, which is why many collectively negotiated agreements already include provisions that recognize and establish various rights, responsibilities and privileges of employee organizations. However, these provisions often include additional language designed to balance the rights of the union with management’s obligation to minimize any interruption with the normal, day-to-day operations of the school district. A-3686/S-2137 does not include sufficient assurances that district operations will not be adversely impacted by union activity on school property.
The NJSBA is also concerned that the measure violates employee privacy rights. Another concern is the requirement that implementation of certain provisions of the bill are enforceable through the parties’ grievance procedures, which shall include binding arbitration. Any grievance procedure regarding a union’s access to its members should be negotiated between the two parties, and not dictated by strict statutory language.
A-3686/S-2137 also explicitly forbids employers from encouraging members to resign from the union, or discouraging an employee from joining, forming or assisting an employee organization. These provisions are unnecessary as existing law already protects public sector unions and their members in exercising their rights and prohibits public employers from interfering in union activity.
Finally, NJSBA has raised concerns on a provision that would automatically place both full-time and part-time employees in the union. It is not uncommon for school districts to require employees to work a minimum number of hours before they are eligible to join the union, such as at least 50 percent of the work schedule. This provision effectively grants part-time staff the rights and benefits of full-time employees. It is inappropriate for the Legislature to be dictating which employees will be included in the bargaining unit.
Earned Sick Leave A-1827/S-2171 requires employers to provide earned sick leave to any employees that they employ in New Jersey. As introduced, the legislation would have applied to public employers, including local school districts. The NJSBA successfully advocated for an amendment to exempt boards of education and their employees from the legislation. The NJSBA sought this exemption since school districts already provide their employees sick leave with full pay pursuant to long-standing law. Such a carve-out will prevent any confusion and potential litigation that may have arisen in reconciling existing law with this legislation. The NJSBA appreciates the sponsor’s willingness to address this concern.
Joint Petitions and Bracketing for School Elections S-868/A-2030 would permit candidates for a board of education to circulate a nominating petition jointly and be bracketed together on the ballot. Under the bill, two or more candidates could sign or circulate, or both sign and circulate, a joint petition of nomination for the same term. When two or more such candidates also wish to be bracketed together on a ballot, they must first notify the secretary of the board of education in writing prior to the drawing for position on the ballot. The candidates who are bracketed together will share a position on the ballot as a group and have their names printed together in the appropriate location on the ballot. The legislation would also permit a short nonpolitical designation of the candidates’ principles on their nominating petitions and on the ballot.
Combatting Chronic Absenteeism S-1876/A-2192 requires that, if 10 percent or more of the students enrolled in a public school are chronically absent, the school must develop a corrective action plan to improve absenteeism rates. The bill requires that in developing the corrective action plan, the school must solicit input from parents through multiple means, including administration of a survey, engaging with the school’s parent organization, and, if the school does not have a parent organization, holding a public meeting to provide parents with opportunity to provide input. The bill requires the school to present its corrective action plan to the board of education. The school would review and revise the plan annually, and present the revisions to the board, until the number of students who are chronically absent is less than 10 percent. The bill also requires the commissioner of education to include data on the School Report Cards on the number and percentage of students who were chronically absent and the number and percentage of students who received a disciplinary suspension. The measure also directs the commissioner to review the chronic absenteeism rates of each school and school district annually, and report on the rates to the State Board of Education.
Breakfast After the Bell S-1894/A-3506 requires a public school in which 70 percent or more of the students are eligible for free or reduced-price meals under the National School Lunch Program or the federal School Breakfast Program, to establish a “Breakfast after the Bell” program. Under current law, a school with 20 percent or more of those eligible students must have a school breakfast program. The bill provides that, within six months of the bill’s effective date, each school district must submit a plan to the N.J. Department of Agriculture for establishment of a “Breakfast after the Bell” program for all grades at each school that is subject to the provisions of the bill. A school district must establish the program no later than the first full school year after submission of the plan. NJSBA supports the bill.
Non-Participation Report/Community Eligibility Provision S-1985/A-3503 requires every school district in which there is at least one school that qualifies for the Community Eligibility Provision (CEP), but is not implementing it, to report the reasons for nonparticipation in writing to the N.J.Department of Agriculture and the NJDOE. The CEP is a federally-funded reimbursement alternative for eligible, high-poverty local educational agencies and schools participating in both the National School Lunch Program and School Breakfast Program. The CEP allows the nation’s highest poverty schools and school districts to serve breakfast and lunch at no cost to all enrolled students without collecting individual household applications.
Meal Denial Reporting S-1896/A-3502 requires every school district to biannually report to the N.J. Department of Agriculture the number of students who are denied school breakfast or school lunch. Under current law, if a public school student’s school breakfast or school lunch bill is in arrears, the district must contact the student’s parent or guardian to provide notice of the arrearage and provide a period of 10 school days to pay the amount due. If the parent or guardian does not make full payment by the end of the 10 school days, the district must provide a second notice that school breakfast or school lunch, as applicable, will not be served to the student beginning one week from the date of this second notice unless payment is made in full.
Summer Meal Programs S-1897/A-3504 expands summer meal programs to all school districts where 50 percent or more of students are eligible for free- or reduced-price meals. Specifically, the legislation requires every school district, in which 50 percent or more of the students enrolled in the district on or before the last school day before Oct. 16 of the preceding school year were eligible for free- or reduced-price meals under the National School Lunch Program or the federal School Breakfast Program, to become a sponsor or site of the federal Summer Food Service Program.
No later than one year after the bill’s enactment, a school district that is subject to the bill’s requirements must submit an application to the state Department of Agriculture to become a sponsor of the Summer Food Service Program or documentation that the school district will become a site under an existing approved sponsor. A school district subject to the provisions of this bill must become a sponsor of the Summer Food Service Program or become a site under an existing approved sponsor no later than two years following the bill’s enactment. The bill permits the state Department of Agriculture to grant a waiver from the requirements of this bill to a school district that establishes: (1) it lacks the staff, facilities, or equipment to be a sponsor; or (2) it lacks the means to finance such staff, facilities, or equipment. The department may also grant a waiver for one year to a school district if a different sponsor currently runs the federal Summer Food Program within the same community.
The Summer Food Service Program is a federal program that reimburses sponsors for administrative and operational costs to provide meals for children 18 years of age and younger during periods when they are out of school for 15 or more consecutive school days. The program is funded by the U. S. Department of Agriculture and administered by the state Department of Agriculture. NJSBA supports the legislation.
Assembly Approves Panic Alarm Bill
Last Thursday, the full General Assembly approved A-764, entitled “Alyssa’s Law,” which requires public school buildings to be equipped with an emergency light and panic alarm for use during a security emergency. The alarm would be linked to local law enforcement, as well as an exterior emergency light which would illuminate when the alarm button is pressed. The state, through the Schools Development Authority, would incur costs associated with installation of these panic alarms. This legislation has passed both houses in previous sessions only to be vetoed by the governor. It is the hope of the sponsors that the new governor will be more receptive to this proposal. The bill is named in honor of Alyssa Alhadeff, a 14-year old student, who was killed on Feb. 14, 2018 at Marjory Stoneman Douglas High School in Parkland, Florida. NJSBA supports this bill, which now heads to the Senate.
Senate Ups Vo-Tech/School Security Bond Bill to $1 Billion
The Senate was scheduled to vote on legislation that will help finance school security improvements as well the expansion of county vocational school and county college capital projects. Instead the measure was pulled and amended on the floor to add even more funds for school security improvement grants. S-2293, entitled the “Securing Our Children’s Future Bond Act,” will now authorize the issuance of $1 billion in bonds, which may be utilized for the following purposes:
- $500 million for school facility security projects (up from $250 million);
- $450,000,000 for county vocational school district construction projects; and
- $50,000,000 for county college projects.
The following two NJSBA-tracked bills passed the full Senate on last Thursday:
Promoting Apprenticeships S-372 requires the New Jersey Commissioner of Education, in consultation with the New Jersey Commissioner of Labor and Workforce Development, to develop guidelines for use by high school counselors to coordinate services with representatives of the New Jersey State Building and Construction Trades Council for purposes of encouraging student participation in apprenticeships and raising awareness of apprenticeship opportunities. The commissioner will post the guidelines on the education department’s website and will update the information annually. NJSBA supports the legislation.
Gas Tax Exemption for School Buses S-1697 exempts fuel used for the operation of school buses from the state’s fuel taxes. Under the bill, the exemption from the tax applies to fuel that is used for school buses operated for the transportation of pupils to or from school or a school-sponsored activity or event by a religious or other charitable organization or corporation.
Currently, if a school district operates its own school buses, the school district uses tax-exempt fuel for those buses. However, if a school district uses contracted school bus transportation, the contractor does not receive a fuel tax exemption. Thus, the contractor includes the cost of the fuel, including the fuel taxes the contractor pays, as part of the contract cost with the school district. According to the Office of Legislative Service, by exempting certain purchases of fuel made by private school bus operators, local school districts that contract for transportation services with private school bus operators may realize cost savings through a decrease in future contract costs if the savings realized by such operators from the purchase of the newly tax-exempt fuel are passed along to the districts. NJSBA supports the legislation.