On occasion, a board of education may have the unfortunate duty of withholding the salary increment of a recalcitrant employee. The withholding is considered a significant disciplinary message, one used as a last resort before tenure charges are filed seeking to terminate that employee.

As such, most professionals whose pay is withheld understand that message and will very often comport themselves accordingly the following school year. In those situations, the employee remains on the board payroll, though without the employment increment they normally would have received. Where the employee remains on the payroll after an increment withholding, questions can arise about the calculation of the proper salary, post-withholding.

The New Jersey Commissioner of Education has determined that the salary calculation should follow a specific formula.  In a relevant case,  a school board withheld the scheduled pay increase of an employee with 11 years of service in the district. At the point of the withholding, the employee was on step 11 of the district’s salary guide. Accordingly, the employee received the same salary for both the 11th and 12th years in the district.

However, the employee took the salary withholding to heart, showing improved performance during the 12th  year, and thus earned an increment the following year, the 13th.  In calculating the salary for that 13th year, the board argued that after remaining on step 11 for two years, the employee should next advance to step 12 on the guide.

However, the commissioner explained that because the employee’s performance was satisfactory in the year following the withholding, the employee was entitled to receive the increment next listed in the salary guide. Accordingly, the employee was entitled to have the increment for the 13th year added to his post-withholding salary, which meant that the actual salary would not be listed in the salary guide. As such, the salary was less than that listed on the guide for a person with 13 years of service, but more than the listed salary for an employee with 12 years of service.

In determining the post-withholding salary, boards should fully understand the commissioner’s rationale in imposing the withholding and in calculating the post-withholding salary. For more information on this topic, board members should consult with their board attorney or with the NJSBA Legal Department at (609) 278-5245.