Tenure Protection for Clerical Employees in New Jersey Public Schools

In the United States, the vast majority of employees are employees at-will, meaning they can be fired for almost any reason, as long as the decision is not the result of unlawful discrimination, retaliation, a breach of an employment contract, or some other form of wrongful discharge. However, certain employees of public schools eventually gain much greater protection — the protection of tenure laws.

When most people think about tenure laws, they think of school teachers. In many states, including both New York and New Jersey, teachers attain tenure after they teach in the public school system for more than three years.

But at least under New Jersey law, in addition to teachers, secretarial and clerical employees working for public schools are eligible to attain tenure. The applicable tenure statute states that “[a]ny person holding any secretarial or clerical position or employment under a board of education of any school district” shall attain tenure after “a period of employment of three consecutive calendar years.”

Once an employee attains tenure, the board of education cannot fire him or her unless he or she engages in “neglect, misbehavior or other offense.” Moreover, a tenured employee can only be fired for “inefficiency, incapacity, unbecoming conduct, or other just cause, and then only after a hearing . . . after a written charge or charges.”

My law firm currently represents an individual, Bernard Sharkey, who was fired by the Washington Township Board of Education after he worked for it for more than three years. Mr. Sharkey sought to enforce his rights under the tenure laws.

Although Mr. Sharkey’s official job title was “financial officer,” he basically functioned as a bookkeeper. After an administrative hearing, the New Jersey Office of Administrative Law (OAL) issued an opinion concluding Mr. Sharkey’s job was tenure eligible because his job was clerical in nature. In doing so, the OAL adopted the definition of clerical from Webster’s Dictionary: “one employed to keep records or accounts or to perform general office work.”

The New Jersey Department of Education subsequently affirmed the OAL’s finding that Mr. Sharkey’s position was tenure eligible, but that he had attained tenure, finding he was, in fact, employed for more than three years. Accordingly, the Commissioner of Education ordered Washington Township to reinstate him.

In reaching its conclusion, the OAL relied on a previous decision of the New Jersey Appellate Division, Barnes v. Board of Education of Jersey City, 85 N.J. Super. 42, 45 (App. Div. 1964). Barnes recognizes the term “clerical position,” as used in the tenure statute, must be given a broad interpretation because tenure statutes are intended to secure better public service by providing job security to covered public employees.

Several other administrative cases which follow Barnes use similar broad definitions of the term “clerical position.” For example, one such decision recognizes that two appropriate definitions are “an official responsible for correspondence, records, and accounts and vested with specified powers or authority” and “one employed to keep records or accounts or to perform general office work.” Another administrative opinion relied on two other similar dictionary definitions of the term clerk: “a person employed, as in an office, to keep records, accounts, files, handle correspondence, or the like,” and “a person who works in an office performing such tasks as keeping records and files.” In Sharkey, the OAL adopted the second of those two definitions.

The protection the tenure law provides to clerical employees in public schools is very important. It provides job security to tenured employees, which is a particularly valuable employment law right at any time, but even more so in our current economic climate. In doing so, it encourages well qualified individuals who might otherwise seek higher paying jobs in the private sector to work for the public schools.

Washington Township has appealed the Commissioner of Education’s decision in Sharkey.