On Target 2014 Feb/March / Legal Corner

Snow, Sleet, Ice and the Polar Vortex, Oh My!
We are all painfully aware that winter arrived in New Jersey exactly on time and despite a few short, warm interludes, has not left. Though there are a scant few New Jersey school districts who have avoided unplanned closings this year, they may yet experience unanticipated events such as broken heating systems, broken water pipes, loss of electricity, and other unforseen emergencies that could cause a district to close schools at any time during the school year. As we continue to watch and wait to see how the remainder of the year unfolds, this is an opportune time for administrators to re-familiarize themselves with the law relative to school closings and the impact on the school calendar.
In this regard, it is important to first understand the days mandated by law that teaching staff cannot be required to work. N.J.S.A. 18A:25-3 provides that:
. . . [n]o teaching staff member shall be required to perform his duties on any day declared by law to be a public holiday and no deduction shall be made from such member’s salary by reason of the fact that such a public holiday happens to be a school day and any term of any contract made with such member which is in violation of this section shall be void.
According to N.J.S.A. 36:1-1, there are twelve public holidays in New Jersey:

  January 1 (New Year’s Day);

  The third Monday in January (Martin Luther King’s Birthday;

  February 12 (Lincoln’s Birthday);¹

  The third Monday in February (Washington’s Birthday);

  Good Friday;

  The last Monday in May (Memorial Day);

  July 4 (Independence Day);

  The first Monday in September (Labor Day);

  The second Monday in October (Columbus Day);

  Any general election day;

  November 11 (Veteran’s Day);

  The fourth Thursday in November (Thanksgiving Day); and

  December 25 (Christmas Day)
Whenever the holiday falls on the Sunday, the following Monday is deemed to be the public holiday. Id. However, if the holiday falls on a Saturday, teaching staff members are not permitted observance of the holiday on Friday. Rumson-Fair Haven Educ. Assoc. v. Board of Educ. of the Rumson-Fair Haven Reg. H.S. Dist., 1984 S.L.D. 166. Saturdays and Sundays are also deemed to be legal holidays. N.J.S.A. 36:1-1 and –1.1. The foregoing list of public holidays may change as ordered by the Governor of New Jersey or the President of the United States.
In addition to the above holidays, all full-time teaching staff members are permitted to attend the annual convention of the New Jersey Education Association for no more than two days per year. N.J.S.A. 18A:31-2. Any teaching staff member who attends the conference must receive his/her full salary, upon submission to the board secretary, a certificate of attendance signed by the executive secretary of the association.
Many and possibly most New Jersey school districts are struggling with how to rearrange their calendars this year in order to ensure that their districts meet the mandatory minimum of 180 school days. This year, as in prior years in which districts faced multiple closings, some districts have rearranged the school calendar and have scheduled classes on one or more of the legal holidays set forth above. While this concept may provide an easy way to meet the required number of school days, it is important to note that no district may require its teaching staff members to report to work on any of the days listed above, though teachers may voluntarily report to work on those days. A board may, however, require staff members to make up holiday absences. Dohm v. Bd. of Educ. of West Milford, 1983 S.L.D. 13; Middletown Township Educ. Assoc. v. Middletown Twp. Bd. of Educ., C. #182-87 (July 14, 1987). Clearly, individual agreements with each district’s negotiations unit will impact how each district manages holiday work schedules.
Generally, the establishment of the school calendar is a managerial prerogative and, therefore, not negotiable. However, the terms and conditions of employment arising as impact issues due to calendar changes are mandatorily negotiable. Piscataway Twp. Educ. Assoc. v. Piscataway Twp. Bd. of Educ., 307 N.J. Super. 263 (App. Div. 1998), certif. denied 156 N.J. 385 (1998), on remand PERC #99-39, 24 NJPER 520 (¶29242 October 27, 1998). While a board may have a managerial prerogative to change the school calendar and set staffing levels, the school district must negotiate with the association over the impact that the change in calendar brings to alleviate any “severe consequences” employees may face as a result of the change.
In anticipation of the need to make adjustments to the calendar due to unplanned school closures, many school districts now designate contingency dates in which school will be held, and days off will be cancelled, in the event all snow days have been exhausted. In the event that a district did not set aside any contingency days on its calendar, or in the event that districts exceed the number of contingency days and need to make further adjustments to the calendar, then prior to asking teaching staff members to work during a public holiday, or to change their vacation plans, administrators should review the collective negotiations agreements together with the board attorney or labor counsel. Only after a thorough review of the applicable negotiated agreements can administrators chart the best course in having their districts make up the unplanned absences.

¹. Though Lincoln’s Birthday is on the list of public holidays, it is expressly excluded from the list of paid holidays for state employees. See N.J.S.A. 36:1-1(d); see also N.J.S.A. 11A:6-24.1 (Lincoln’s Birthday not included on the list of paid holidays granted to State Civil Service employees.) While state offices are open on Lincoln’s Birthday, some government offices including some municipalities and Federal courts in New Jersey, are closed.