It is well-settled in case law that the establishment of the school calendar is the managerial prerogative of a board of education. The courts have held that a board of education has the managerial right to alter, change or amend the school calendar during the school year and that the decision of that change, generally to reschedule days lost to inclement weather are not negotiable.
However, the school law, N.J.S.A. 18A:25-3, provides:
No teaching staff member shall be required to perform his/her 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 the fact that such a public holiday happens to be a school day and any term of any contract made with any such member which is in violation of this section shall be void.
PUBLIC HOLIDAYS DEFINED BY STATUTE:
- January 1, known as New Year’s Day;
- The third Monday in January, known as Martin Luther King’s Birthday;
- February 12, known as Lincoln’s Birthday;
- Third Monday of February, known as Washington’s Birthday;
- Good Friday;
- Last Monday in May, known as Memorial Day;
- July 4, known as Independence Day;
- First Monday in September, known as Labor Day;
- Second Monday in October, known as Columbus Day;
- General Election Day, usually the first Tuesday following the first Monday in November;
- November 11, known as Armistice Day or Veteran’s Day;
- Fourth Thursday in November, known as Thanksgiving Day; and
- December 25, known as Christmas Day.
Further, the Governor by executive order has traditionally declared the Friday after Thanksgiving to be a holiday (current governor excluded).
The statute also provides that whenever any holiday falls on a Sunday, the holiday shall be observed on the succeeding Monday. There is a separate statute that indicates when a holiday falls on a Saturday, state employees are allowed to observe the holiday on the preceding Friday. There is no comparable statute which applies to school district employees. The Commissioner has determined that Saturdays and Sundays are not declared public holidays for a band director who was assigned to work on those days as part of the duties of that particular extracurricular activity.
There is one other statute which is tangentially related and that is N.J.S.A. 18A:31-2, which provides that teaching staff members and secretaries may take up to two days off to attend the NJEA Convention.
There have been a few decisions interpreting this topic. In one decision, the Commissioner determined that a school district could not deduct a day’s pay from a teacher who exercised his/her right not to work on any declared public holiday. The Commissioner has also decided that a school district could properly withhold the pay of teachers who did not work on the Friday preceding a Saturday holiday based on the determination that the statute allowing for such is only applicable to state employees.
If, however, the collective bargaining agreement sets forth the number of days in the work year and one or more of those days are public holidays, teachers may be required to work additional days to complete the contractual obligation. PERC has determined that compensation for rescheduled in-service days for people who did not work on a holiday is mandatorily negotiable with the bargaining unit.
Unlike the legislation concerning secular holidays which deals with the rights of teaching staff members, statutes addressing religious holidays primarily concern student observation of the holiday. The law provides:
- Any pupil absent from school because of a religious holiday may not be deprived of any award or of eligibility or opportunity to compete for any award because of such absence.
- Pupils who miss a test or examination because of absence on a religious holiday, must be given the right to take an alternate test of examination.
- To be entitled to the privileges set forth above, the pupil must present a written excuse signed by a parent or person standing in place of a parent.
- Any absence because of a religious holiday must be recorded in the school register or in any group or class attendance record as an excused absence.
- Such absence must NOT be recorded on any transcript or application employment form or on any similar form.
- The Commissioner, with the approval of the State Board of Education, is required to:
- Prescribe such rules and regulations as may be necessary to carry out the purposes of this act.
- Prepare a list of religious holidays on which it shall be mandatory to excuse a pupil. The list, however, is to be a minimum list. Boards of Education, at their discretion, may add other days to the list for the schools of their districts. (See appendix)
The law, with regard to the staff’s observation of religious holidays, has evolved as a result of court decisions. The cases concern provisions in collective bargaining agreements which allowed staff members days off from work as religious leave days.
The leading case in this area is Hunterdon Central BOE v. Hunterdon Central Teachers Association, which eventually was decided by the State Supreme Court. The issue raised in Hunterdon Central was whether a board of education may agree to allow certain members of a bargaining unit to take days off from work for the purpose of religious observation without deduction of personal days, vacation days or a day’s pay. PERC determined:
…[We] find that the granting of additional days off with pay, i.e., not charged to personal days, vacation or any other leave available to all employees, specifically for the observation of religion does violate the constitutional prohibitions against the establishment of religion. These are additional leave days that can only be granted for religious observances; and a benefit that nonreligious employees can never enjoy. It “aids all religions as against nonbeliever.”
On appeal, the Appellate Division of the Superior Court affirmed the determination of PERC and decided:
We are of the view that agreement by a board of education to paid leaves of absence for religious purposes such as those contemplated here would not meet the [constitutional] test. Clearly, there would be no secular purpose in such provision; indeed, the sole purpose would be to permit certain teachers to be absent with pay for no reason other than religious observance, even though the number of allowable days might be specifically limited. Moreover, the effect would be to enhance religion, since only those of professed religious faith would benefit to the exclusion of those who had no religious persuasion. Such provision would not only accord teachers the opportunity to worship, it would encourage them to do so. Finally, since teachers availing themselves of such leaves of absence would be paid, the resultant expenditure of tax money would arguably be so intertwined with religious observance as to constitute excessive entanglement with religion.
The Supreme Court affirmed the decision of the Appellate Division for the reasons set forth above. The ruling means that it is unconstitutional for a board of education to agree to allow religious leave days. However, clearly, employees may use personal days, vacation days or days without pay for religious purposes.
Shortly after the Supreme Court’s decision in Hunterdon Central, a similar issue involving the contract between the Cherry Hill Board of Education and Cherry Hill Association of School Administrators was presented to PERC. In Cherry Hill, the contract provided:
On religious holidays, when schools are closed, administrators are entitled to take the religious holiday without being charged a personal day or vacation day.
It was understood by the parties that this clause referred to three Jewish holidays on Rosh Hashanah and Yom Kippur, days on which Cherry Hill Schools were traditionally closed. The Board upon hearing of the Hunterdon Central decision decided that the above provision in the contract was unconstitutional and informed the Association that no administrator could have a day off on Rosh Hashanah or Yom Kippur unless the administrator used a personal or vacation day under another provision in the contract.
At the hearing before PERC, several administrators testified that they understood the clause granted them the same benefit enjoyed by the teachers on those days. Since the schools were officially closed, they did not have to work. They testified that administrators, whether they were Jewish or not, took the days off and did so without submitting an absence form to central office as would be required for vacation, illness or personal leave days.
PERC determined that the provision in the Cherry Hill contract was not unconstitutional. The clause was neutral as to the observation of religious holidays in that every administrator, regardless of his/her religious persuasion and regardless of whether he/she observed any religious tradition, could avail him/herself of the benefit of taking the day off. PERC found that the clause merely gave the administrators the same benefit as the teachers, that being, when schools were closed on the three days in question, they did not have to report to work.
As a result of the above cases, the law is that a school district may not permit religious leave days unless the days are charged to personal days, vacation days or leave without pay. This is not to be interpreted that staff members may not take the days off for religious observation, but rather if they choose to do so, the days must be charged to one of the above categories. However, if schools are closed for religious holidays because student and/or staff attendance on those days would be low, staff members, whether administrators or teachers, may negotiate that they have the days off also, provided that benefit is for all members of the bargaining unit, believers and nonbelievers alike.