In a recent decision, the New Jersey Acting Commissioner of Education determined that, where a district’s collective negotiations agreement (CNA) provided for a work day of five teaching periods but teachers could receive extra compensation to teach a sixth, the sixth teaching period became a separately tenurable position. Consequently, while the board had the discretion to implement a reduction in force (RIF) regarding the sixth teaching period positions, the commissioner ordered that teachers who earned tenure in these positions be placed on a preferred eligibility list by seniority for reemployment.  

In the Dec. 21 ruling, the commissioner reviewed a provision in a CNA that established a daily teaching load of five teaching periods and one duty period. However, where the district identified need for additional teaching servicesthe administration would offer and teachers could agree to a sixth teaching period for additional compensation on top of their base salary. Though this arrangement existed for several years, the board did not offer the sixth period option for the 2019-2020 school year. Petitioners, who were tenured teachers who had previously taught the sixth period, appealed the board’s decision and argued this was a reduction of compensation in violation of their tenure rights. 

An administrative law judge initially found in favor of the board, finding that some of the petitioners had not taught the sixth period for the time required to earn tenure in that position. Further, the judge found that the sixth period assignments were “temporary and conditional” and therefore “could not be used as the basis for tenured compensation.” The judge also determined that the reduction of the sixth period positions was a RIF within the discretion of the board.  

The acting commissioner overturned the judge’s finding that the sixth period teaching positions were not tenurable. In the decision, the commissioner noted that, absent a statutory exception, a teaching staff member holding valid certificates is eligible for tenure if the staff member works in a position requiring a certificate for the required number of years to earn tenureThe statutory exception to tenure accrual for temporary employees, N.J.S.A. 18A:16-1.1, only applies where such employee is hired in place of an absent teacher, which was not the case here. Further, the commissioner found that if the sixth period positions where filled by a new hire, the position would be tenure eligible, and did not become ineligible merely because a teacher filling the position already held tenure in another position.  

Therefore, the commissioner concluded that the petitioners could obtain tenure in the sixth period position if they held the required certificate and taught for the required period of time in that position to qualify for tenure. However, the commissioner concurred with the judge that the board had discretion to implement a RIF in regard to the sixth period positions, and ordered that the petitioners who earned tenure be placed on a preferred eligibility list. The board was directed to conduct a seniority analysis and, if the board found that nontenured employees or employees with less seniority filled sixth teaching period positions for which the tenured petitioners qualified, it was further directed to compensate such petitioners accordingly.  

Significantly, the decision did not address what would have occurred if the board had negotiated a RIF clause where decisions were not based on seniority alone. For example, a contractual RIF provision could include a requirement that layoffs will consider years of service and the employees’ qualifications, performance and attendance record, as well as the ability of the employee to perform the functions of the job required by district needs. 

For more information about the Dec. 21, 2020 decision as well tenure accrual and reductions in force, board members should consult with their board attorney or call the NJSBA Legal, Labor and Policy Department at (609) 278-5254.