Articles Posted in Education Employment Law

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New Jersey public employees have multiple venues to litigate employment claims against their government employers.

Forums Available to New Jersey Public Employeescolumns-round-300x201

New Jersey government employees can sue in New Jersey state court, beginning with the Superior Court of New Jersey which sits in each county, for violation of state laws such as the New Jersey Conscientious Employee Protection Act, the New Jersey Civil Rights Act and the New Jersey Law Against Discrimination, and then the state appellate courts.  For employment-related civil rights claims or violations of Federal laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act or the Fair Labor Standards Act, employees can file suit in the Federal courts beginning with the United States District Court for the District of New Jersey which sits in Camden, Trenton and Newark, with appeals heard by the United Staes Third Circuit Court of Appeals and then the United States Supreme Court.  A civil service employee who alleges that she was disciplined in violation of civil service laws can appeal to the New Jersey Civil Service Commission, with appeals from Commission decisions being heard by the Appellate Division of the Superior Court of New Jersey.  Tenured teachers and other education employees can appeal to the New Jersey Department of Education.  Public employees can utilize the grievance procedure in the contract for allegations of violations of the contract for discipline, pay violations and other related matters.  Grievance procedures in many union contracts often provide for binding arbitration with the Public Employment Relations Commission (“PERC”). PERC will also hear allegations of unfair labor practices, binding arbitration of certain contract negotiation impasses, scope of negotiations disputes, bargaining unit disputes, and certain appeals of discipline by law enforcement officers who are not employed in civil service jurisdictions.

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New Jersey teachers are required to possess certificates issued by the State Department of Education in order to be employed in a teaching capacity.  These certificates are not easy to get, and have educational and testing requirements.  They are required to ensure that those teaching New Jersey students have the requisite skills.  Without them teachers cannot teach.  However, teaching3-225x300 certificates may be suspended or revoked for multiple reasons.

What are the grounds for teacher certificate revocation or suspension in New Jersey?

In New Jersey, teacher certificates can be revoked or suspended due to unbecoming conduct, inefficiency, incapacity among other reasons.  Teaching certificates may also be suspended when teachers leave their job without completing the contractual term of employment without the board of education’s consent.

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Under New Jersey employment law, tenure provides college, university and school faculty great protection.  However, this protection is not unlimited.  A New Jersey appeals court explained how courts should review decisions to terminate a tenured college professor in the case of Chee Ng v. Fairleigh Dickinson University.council-of-state-535721__340-300x103

Background

Dr. Chee Ng was a professor of finance at the Silberman College of Business at Fairleigh Dickinson University.  He was granted tenure in 2003, and promoted to full professor in 2007.  In 2009, ten of his students complained to the school regarding Dr. Ng’s conduct in class.  They alleged that he made discriminatory comments in class, mistreated students, and was generally rude.  Similar complaints were made again in 2010.  The department chair counseled him, but similar complaints were made by more students in 2012.  More counseling was held.  Complaints were again received in Fall 2013 and Spring 2015; again, he was counseled.  Dr. Ng then took a sabbatical during the Fall 2015 and Spring 2016 semesters.  However, more student complaints were received upon Dr. Ng’s return.  The complaints were investigated, and the Dean met with Ng and advised him that if there were more upheld student complaints, there would be more severe consequences.

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New Jersey employment law requires teachers and other public education employees to hold teaching certificates, or other certificates as appropriate to the position, as a prerequisite to holding their job.  A New Jersey appeals court recently examined the legal principles involved when the New Jersey State Board of Examiners determines whether to suspend or revoke a teacher’s teachingnational-gallery-of-art-1380105-m-300x248 certificates in the case of In the Matter of the Certificates of Rita O’Malley by the State Board of Examiners.

Background

Rita O’Malley was a special education teacher.  She held several teaching certificates.  She was employed by the Woodbridge Township School District as a Learning Disabilities Teacher Consultant (“LDTC”), for which she was licensed,.  She tested students, diagnosed learning disabilities, developed individualized education plans (or “IEPs”), and provided guidance to parents and educators on the best programs for those students.

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Background

Employment as a teacher and in many other New Jersey public school positions requires that the employee hold a certificate to work in their positions.  However, under certain1-300x225 circumstances, these certificates can be suspended or revoked, rendering the employee ineligible to work in their chosen profession.

The New Jersey Commissioner of Education can suspend the certificates of employee’s who leave before their term of employment ended without their employer’s consent.

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Arbitrators make the final decision in hearings on tenure charges.  Appeals are limited.  However, the scope of their powers to fashion appropriate discipline was open to question.  As I wrote last year, the Appellate Division of New Jersey’s Superior Court ruled in the case ofschool-bus-1-300x200 Sanjuan v. School District of West New York that arbitrators were limited in those powers, and could not impose demotion as a remedy for disciplinary violations.  The case was appealed, and the New Jersey Supreme Court issued a decision overturning the Appellate Division’s decision.

Background

Amada Sanjuan worked for the West New York Board of Education as an assistant principal.  On February 12, 2020, she fell down a flight of stairs, was injured, and was out of work as a result.  Sanjuan claimed that she fell while picking up a piece of paper on the stairs.  However, video showed that she removed a piece of paper from her purse after she fell, and placed it at the top of the stairs.

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New Jersey employment law in the public sector incorporates the doctrine of collateral estoppel, which in some cases bars relitigating issues already decided in another forum.  This applies to administrative appeals of employment action.  A New Jersey appellate court7-300x225 recently examined this doctrine in the context of the revocation of a teacher’s teaching certificate after an arbitration on tenure charges in the case of In the Matter of the Revocation of the Certificates of Lesley Etheridege by the State Board of Examiners.  The court extended the reach of the New Jersey Supreme Court’s Winters case.

Background

Lesley Etheridege was employed as a teacher by the Passaic County Vocational School District.  She held a New Jersey Department of Education “Teacher of Electronic Technology Certificate of Eligibility” and a “Teacher of Electronic Technology Standard Certificate.”  In 2015, the District filed 23 tenure charges against her with the New Jersey Commissioner of Education, one for inefficiency under the TEACHNJ Act, and 22 for various instances constituting conduct unbecoming a teacher (one of which the District later dismissed).  The Commissioner found that, if true, the allegations would be grounds for termination or reduction in salary and therefore transferred the charges to an arbitrator in accordance with the TEACHNJ Act.  The arbitrator held three days of hearings and sustained the charges, finding that Etheridge had committed conduct unbecoming by “falsifying grades and engaging in inappropriate grading practices; failing to report to teaching assignments; leaving students unattended; leaving the school campus without permission or notification; failing to complete lesson plans; and insubordination by failing to provide lesson plans as directed by her supervisor.” The arbitrator rejecter Etheridge’s argument that the charges were brought because of political affiliation, nepotism, union activity and discrimination.  The arbitrator found that termination was the appropriate remedy for her continued pattern of inappropriate behavior.

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One of the most difficult New Jersey employment law issues confronted by government employees is that they are sometimes drawn into legal action because of actions taken in the course of their employment.  Defending such charges can cause significant expense andsupreme-administrative-court-3565618_960_720-300x200 hardship to government employees.  For teachers, administrators and other public education employees, however, there are two laws which provide for payment of the employee’s attorneys fees and litigation expenses by their board of education in certain criminal, quasi-criminal, administrative and civil legal actions. The Appellate Division examined the question of when an employee must notify their employer and request payment under the two different statutes in a case where the New Jersey State Board of Examiners sought to revoke an employee’s teaching certificate in the case of Maria Azzaro v. the Board of Education of the City of Trenton.

Background: The Order to Show Cause and Administrative Litigation

Maria Azzaro worked for the Trenton Board of Education.  The New Jersey Department of Education, Office of Fiscal Accountability and Compliance alleged that while Azzaro was a vice-principal at Trenton Central High School improper practices occurred including misassignment of students, giving students credits for classes they did not attend or attended only sporadically, that certain classes did not meet Department requirements, and that transcripts were falsified so that students could matriculate.  As a result, in 2007, the New Jersey Department of Education, State Board of Examiners served Azzaro with an Order to Show Cause seeking revocation or suspension of her teaching certificate because she allegedly knew of or participated in these practices.

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A recent New Jersey employment law decision in the case of A.B. vs. Board of Education of the City of Hackensack, Bergen County illustrates the dangers of public employees, especially teachers, posting suggestive content on their social media accounts, and the reach and consequences of the New Jersey “Pass the Trash” Law.

 

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A.B. was a teacher with the Hackensack Board of Education.  In 2013 the Board was advised that A.B. had made inappropriate posts on her social media page, including: “Fuck me, I’m Irish”, and “Women say Men Think with Their Penis. Ladies, don’t be afraid to blow their minds.”  Finding these posts could potentially constitute sexual misconduct, the Board considered discipline and started an investigation, including referrals to the Hackensack Police Department and Bergen County Prosecutor’s Office.  The Board of Education was particularly concerned that A.B.’s post could have been seen by her minor age students.  Three days later, the Board of Education and A.B. entered into a settlement agreement in which she resigned. She then went to work for another school district.  New Jersey enacted the Pass the Trash Law in 2018.

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New Jersey employment law has few more contentious areas than tenure rights for public school teachers.  I previously wrote about the Appellate Division decision in Parsells v. Board of Education of the Borough of Somerville.  The case was subsequently appealed, and the New

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Jersey Supreme Court upheld the Appellate Division’s decision while modifying it and establishing an important rule of law for when a teacher can be found to have waived her New Jersey tenure rights.

Background

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