Cooper Levenson Guidance for Payment of Non-Certified or Non-Instructional Staff During State Shutdown

To Our School Board Community:

We have been fielding several questions regarding payment of non-certified or non-instructional staff employees in the public school system during a School District closure to students. This guidance is subject to any laws passed on an emergent basis during this unprecedented time. We recommend your School District consider the following:

• Follow your plan submitted to the New Jersey Department of Education.
• Always have the health, safety, and welfare of your students and staff at the forefront of any decision making.
• Check Collective Bargaining Agreements; while they are not likely to address this type of situation, they may provide guidance, especially if the district has dealt with other emergent situations; be mindful of past practice.
• Generally, a public entity typically does not pay a salary to a person who is not performing work on behalf of the District.
• This issue is currently on appeal before the New Jersey Supreme Court, regarding the payment of a salary to employees working fulltime for their associations.
• However, Boards ARE statutorily authorized to provide “the payment of salary in cases of absence not constituting sick leave…” Therefore a Board can most likely provide extended paid leave to employees.
• You may consider negotiating payment terms with your local association, but the closing of schools is non-negotiable.
• During the school shutdown, you should consider the following:
  1. Have employees who work from home provide some form of check-in for staff.
  2. Have designated times in which staff are expected to check e-mails and voicemails.
  3. Have staff continue to respond to parents/follow-up, and be available during the “school day.”
  4. Allow support staff to reach out to teachers they support in the classroom to support them in any way possible.
  5. Consider whether and to what extent employees such as custodians and maintenance workers continue to come into work to keep the buildings clean and the grounds well-kept, subject to restrictions on gatherings, or other closure orders.
• If you provided extended paid leave to employees not performing job responsibilities:
  1. Notify employees that based upon the length of time the School District is closed, their paid status might change.
  2. The Board should authorize or ratify paid leave.

If you have any further questions about paying employees in the coming weeks, please do not hesitate to contact us.

Authored by: Elizabeth C. White, Esq.