In a recent decision, the Appellate Division of the Superior Court reversed a decision of the commissioner of education regarding the compensation due to two part-time special education teachers.

In Zimmerman v. Sussex Cty. Ed. Svcs. Comm., the educational services commission reduced the number of hours assigned to certain part-time tenured teachers based on the belief that those teachers could not provide specific services to classified students where they only possessed a “teacher of the handicapped” certification. The teachers appealed the reduction in hours to the commissioner of education as a violation of their tenure rights.

The commissioner determined that the two part-time special education teachers, who were both tenured, were not subject to a reduction-in-force (RIF) and therefore suffered no injury when the educational services commission reduced their part-time hours by nearly two-thirds. The commissioner reasoned that because the teachers’ hourly rate remained the same following the RIF, they were not subjected to a reduction in compensation and therefore their tenure rights, and specifically their seniority rights, were not violated. The commissioner noted that the teachers contracted for flexible hours and knew that the educational service commission’s need for their services varied based on student need. In addition, the commissioner relied on the fact that the collective bargaining agreement did not specify a minimum number of hours for these teachers.

On appeal, the Appellate Division reversed the commissioner’s decision and remanded the matter for additional review. But in doing so, the court established further guidance regarding the determination of whether the compensation of part-time tenured teachers has been reduced.

The Appellate Division first determined that the failure to include a minimum number of hours in the collective negotiations agreement, or in the teachers’ individual contracts, did not deprive them of their tenure rights and concluded that once obtained, tenure becomes a mandatory term and condition of employment that could not be waived or bargained away. Accordingly, the Appellate Division specifically reversed that part of the commissioner’s decision holding the part-time teachers were without protection under the Tenure Act.

The court then remanded to the commissioner two remaining issues, whether the reduction in hours actually reduced the teachers’ compensation as prohibited by N.J.S.A. 18A:28-5, and whether the reduction triggered their seniority rights. On remand, the Appellate Division directed the administrative law judge to “apply the term ‘compensation’ by considering the practical effect of the reduction in hours on petitioners’ annual income [and] to determine whether the decrease in hours resulted in a reduction in force (RIF), and if so, devise the appropriate remedy.”

In doing so, the court telegraphed to the administrative law judge that the term “compensation” as applied to full-time teachers is normally understood to include annual compensation, and explicitly applied that understanding to the petitioning teachers. In addition, the court opined that the commissioner’s focus only on the hourly rate in determining whether a reduction in compensation had occurred failed to recognize annual income. The court then suggested that a better way to calculate annual compensation while respecting existing seniority rights would be to pro-rate the reduction based on teacher seniority. The court reasoned that by using the suggested approach, the teachers would be safeguarded against a reduction in annual income without forcing the educational services commission to pay for unneeded hours. The court concluded that there would be no prejudice to the educational services commission because the annual income would depend on seniority instead of an expected minimum number of work hours during a given school year.

Because this decision was remanded to the commissioner of education for a full development of the record, further clarification of this decision is expected. However, while the remand remains pending, board members may seek additional information from the board attorney or from the Legal and Labor Relations Services Department of the New Jersey School Boards Association.

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