Aug 17, 2020
New Law Grants Sweeping Discipline Protections to Educational Support Staff
S-993, legislation recently signed into law by Governor Murphy, is the fulfillment of a long-standing goal by the NJEA to broaden disciplinary protections for non-teaching support staff such as bus drivers, aides, custodians and maintenance personnel. The legislation significantly expands these employees’ rights to submit to binding arbitration the question whether just cause existed for a disciplinary action.
Specifically, the legislation modifies the section of the New Jersey Employer-Employee Relations Act that previously required public employers to negotiate grievance procedures, with binding arbitration as the terminal step, for disputes concerning imposition of reprimands and discipline. The new law gives non-teaching employees the right to submit to binding arbitration any dispute regarding whether there is just cause for a disciplinary action. Most significantly, the statute includes in that category non-renewal of an employment contract, expiration of a contract or lack of continuation of employment, irrespective of the reason for the employer’s action or failure to act and irrespective of any contractual provision. While many of the disciplinary actions referenced in the new law were often the subject of binding arbitration in any event, nonrenewals of contracts have previously been deemed by the courts to not be disciplinary actions and within a board of education’s discretion.
This new law basically gives tenure-like protection to all school district employees who are not teaching staff members if the nonrenewal was based upon a disciplinary reason. In fact, it gives those employees more protection than is typically provided to non-tenured teaching staff members. The law leaves open the question about whether a non-renewal that was based upon poor performance, rather than discipline is subject to binding arbitration. Currently, there is a procedure in the law for the Public Employment Relations Commission to make that determination for increment withholdings, but there currently is no such procedure for non-renewals. This will presumably be addressed in the future through case law or regulations. However, if the law is ultimately deemed to require arbitration irrespective of the reason for the nonrenewal, the legislation may well interfere with the ability of boards of education to reduce support staff for economic or educational reasons. It will also severely impinge on efficient management of support staff performance and conduct by districts.
Should you have any questions concerning this new legislation, or if you are contemplating any nonrenewal or other reduction of support staff employees, please contact the school law attorneys at Schenck, Price.
DISCLAIMER: This Alert is designed to keep you aware of recent developments in the law. It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.