On April 30, 2019, the New Jersey Supreme Court held for the first time that when school employers allocate hours to part-time educational employees in positions whose hours fluctuate, preference must generally be given according to tenure and seniority status in assigning hours. The decision also clarified for the first time that tenured, part-time educational employees are protected from reductions in the numbers of hours worked, even if a fixed number of hours is not provided for in the part-time employee’s contract.
The decision, Beryl Zimmerman v. Sussex County Educational Services Commission, concerned two tenured part-time special education teachers employed by the Sussex County Educational Services Commission ("SCESC”). The tenured teachers, who were paid hourly for their services, had their hours reduced while three other non-tenured, part-time employees did not have their hours reduced. The reduction in hours occurred as a result of administrative decisions, including a determination (disputed by the teachers) that the two teachers were allegedly not certified to perform certain instruction provided by SCESC.
The New Jersey tenure statutes protect tenured employees from dismissal, as well as from reductions in compensation. Tenured teachers also receive preference over non-tenured employees when layoffs and rehiring occur, and such decisions as between tenured teachers must be made on the basis of seniority. Although New Jersey courts have previously held that tenure protections extend to part-time employees, no decision prior to Zimmerman addressed whether the Tenure Act’s protections against reductions in compensation protects against a reduction in hours for part-time employees whose hours are not defined by contract.
In Zimmerman, the SCESC argued that so long as a tenured part-time employee’s hourly rate of compensation is not reduced, a school employer does not violate the tenure protection against reduction in compensation by reducing a tenured part-time teacher’s hours. The New Jersey Supreme Court disagreed, holding that even if a tenured, part-time employee’s contract did not provide a guaranteed number of hours, the tenure laws still protected against reduction in hours because “tenure rights are not subservient to contractual provisions.” The Court held that the allocation of hours must favor employees according to tenure and seniority.
Although the Court held that tenured part-time teachers are protected from a reduction in hours, it lacked sufficient information to determine whether those rights had been violated in the Zimmerman case. The Court noted that the case could not be decided without information regarding the SCESC’s reasons for reducing the teachers’ hours. The Court remanded the case for a determination as to the reasons the work was reduced for tenured part-time teachers and instead awarded to non-tenured part-time teachers.
The Court required that, on remand, the trial court address the following factors: “[the] certification requirements for the assignments,  the geography of assignments and scheduling needs for the schools being serviced, whether unique educational continuity concerns of the students being serviced were involved in allocating assignments, and whether, all things considered, preference was given to tenured staff and senior staff.” In addition, the Court urged the SCESC and similar entities to create a system that explained how work is allocated and why hours are reduced, as promoting transparency and helping to avoid litigation.