lrAs Boards of Education are faced with cuts in funding and further limitations on their budgets, there is increasing discussion on ways in which Boards can cut costs.  One of the more frequently discussed options is layoffs, which are more commonly referred to as “reduction in force” (” RIF”).  Boards can reduce staff (including tenured certified staff) for “reasons of economy or because a reduction in the number of pupils or of change in administrative or supervisory organization of the district or for other good cause…” N.J.S.A. 18A:28-9.

The purpose of this overview is to provide Boards with basic information which must be considered before the Board decides to RIF employees. However, whether or not to move forward with a RIF requires careful consideration of the specific situation.  It is imperative that any Board considering such action carefully weight the advantages and consequences of a RIF.

Keep in mind that while the decision to RIF employees is generally not subject to arbitration, whether or not any procedures agreed upon in the labor contract have been followed is subject to arbitration.  Thus, it is strongly encouraged that the Board consult with its Board attorney, its personnel department, and labor relations professional, as well as thoroughly review any applicable labor contract prior to making the RIF decision.

Which Employees Are Subject RIF? – Generally, all employees are subject to RIF, although there are some slight differences depending upon the type of employee involved.  Note that certified staff members have seniority by both statute and administrative code.  Neither statute nor the administrative code requires Chief School Administrator recommendation for a RIF.

Certified Staff Members – While certified staff members (administrators, teachers, nurses, etc…) can be RIF’d, they have statutory and administrative code seniority rights. See N.J.S.A. 18A:28-12 and N.J.A.C. 6A:32-5.1. Thus, the certified staff member with the lowest seniority is the one who would be RIF’d first, followed by the one with the next lowest seniority, and so forth.  Situations in which a teacher holds one or more endorsements are very fact specific, and require an extensive investigation of the teacher’s specific endorsement and years of service in a specific title.  As such, when this type of situation arises, Boards must carefully assess and consult with their board attorney.

The notice required to RIF a certified staff member is negotiable.  As such, Boards must check their labor contract and/or Board policies to determine the length of notice that is required.  (Note that neither statute nor Code addresses any required notice.)

Once a certified staff member is RIF’d, the staff member is place on a preferred eligibility list for recall, in order of seniority.  (See N.J.S.A. 18A:28-12).  The certified staff member remains on this recall list for an indefinite period of time, essentially until he/she is returned to a position or removed from the list for some reason.

Non-Tenured Teachers – It is important whether the person subject to the RIF is a tenured teacher or a non-tenured teacher.  Pursuant to N.J.S.A. 18A:27-10, a non-tenured teacher must be advised by May 15th of whether a contract for the coming year will be offered.  If the employee is advised that no labor contract will be offered (non-renewed), the non-tenured teacher’s employment ends at the expiration of the current labor contract (June 30th).  (Note that a non-tenured teacher can be “rehired” following a Donaldson hearing in certain circumstances.)

The decision to not renew a nontenured teacher is not subject to binding arbitration and is only reviewable through the Commissioner of Education.  However, so long as the reason for the non-renewal is not arbitrary, capricious, or improper, the non-renewal is generally considered to be valid.

Custodians – Custodians are subject to possible RIF.  However, note that custodians who have been given tenure (those not appointed to a fix term) also receive seniority rights. See N.J.S.A. 18A:17-4.  Thus, if the custodian has tenure and a RIF occurs, it is the custodian with the least seniority who is laid off first, and rehiring occurs with the most senior RIF’d custodian being return to service first.

If there has been no tenure granted to custodians, it is then a question of labor contract seniority.  This means that a determination must be made whether the labor contract and/or Board policies grant seniority rights to custodians.  If so, these labor contract granted seniority rights (or Board policy granted) may set forth whether it is years of service or some other criteria which is used to determine in what order RIF’s occur.  Furthermore, the labor contract may also address what the recall procedure is, and whether years of service is the controlling element.

If there are no labor contractual limitations or policies in place regarding seniority and/or RIF’s, the Board may have significant latitude in determining which specific custodians are RIF’d.  With the caveat, of course, that the Board cannot base the decision on any illegal or discriminatory reason.  Based upon the myriad of legal protections afforded employees, the Board should be able to carefully and thoughtfully articulate why the decision was made to RIF any particular employee, and legal counsel should be consulted.

Secretaries – Similar to other Board employees, secretaries are subject to RIF.  Secretaries are granted statutory tenure.  (See N.J.S.A. 18A:17-2.)  There is no seniority rights afford to secretaries by either statute or administrative code.

However, this does not mean that secretaries cannot have seniority rights.  Indeed, some Boards have labor contracts (or Board policies) which give secretaries seniority rights.  These labor contracts and/or policies may address whether it is years of service or some other criteria which is used to determine in what order RIF’s occur.  Furthermore, the labor contract and/or policy may also address what the recall procedure is, and whether years of service is the crucial element.

If there is no labor contract limitation or policies in place regarding seniority and/or RIF’s, the Board may have significant latitude in determining which specific secretaries are RIF’d.  However, the Board cannot base the decision upon any illegal or discriminatory reason.  Based upon the myriad of legal protections afforded employees, the Board should be able to articulate why the decision was made to RIF any particular employee, and legal counsel should be consulted.

Bus Drivers, Aides, and Other School Employees – These employees are not granted tenure, but may be granted tenure like protection by a labor contract.  Further, there are no seniority rights granted by statute or administrative code.  Thus, the protections, procedures, criteria, and recall rights given to these types of employees is purely a function of the district’s policies and any applicable labor contract.

Accordingly, it is imperative that the Board review its labor contract and consult with its attorney and labor relations professionals if a RIF of these employees is being considered.    These labor contracts (and/or policies) may address whether it is years of service or some other criteria which is utilized to determine in what order RIF’s occur.  Furthermore, the labor contract and/or policy may also address what the recall procedure is, and whether years of service is the crucial element.

If there are no labor contract limitations or policies in place regarding seniority and/or RIF’s, the Board may have significant latitude in determining which specific employees are subject to the RIF.  The board cannot base the decision upon any illegal or discriminatory reason.  Based upon the myriad of legal protections afforded employees, the Board should be able to carefully and thoughtfully articulate why the decision was made to RIF any particular employee, and legal counsel should be consulted.

Frequently Asked Questions – To provide additional information regarding a proposed reduction in force, including such things as how seniority is calculated, chief school administrator recommendation, sunshine law implications, military leave, and part-time service, the NJSBA has prepared a Q&A, entitled Frequently Asked Questions About Non-Renewals and RIFS.  It is recommended that any Board considering a RIF review this Q&A, and consult fully with its attorney and other labor relations professional.