Appellate Division Holds That Maternity Leave Constitutes Continued Employment

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The Appellate Division, in Kolodziej v. Board of Education of Southern Regional High School District, Ocean County, App. Div. (Parrillo, P.J.A.D.), held July 25 that maternity leave constitutes continued employment under N.J.S.A. 18A:28-5(a), entitling the petitioner to tenure protection and status under the school district's Reduction In Force (RIF) plan.  The panel reversed a Commissioner decision from earlier in the month.

The Facts

A physical education teacher had worked in the district for three consecutive academic years, prior to taking an approved maternity leave during the following academic year. Upon her return, she worked another year, after which the board notified her that it would not renew her contract. She argued that she had acquired tenure and that the board's actions were unlawful.  The Commissioner ruled that the unpaid maternity leave did not count toward tenure.  See Kolodziej v. Southern Regional High School Board of Education

That finding reversed an Administrative Law Judge (ALJ)’s determination that the teacher had acquired tenure.  The ALJ found that the board had approved the maternity leave after her employment for three consecutive academic years, and as such she was "employed" at the beginning of the next academic year,  Given this, she met the statutory requirement of "three consecutive academic years, together with employment at the beginning of the next succeeding academic year." The ALJ ordered the board to reinstate the teacher with back pay in the amount of $137,212 and to award her seniority credits for the period of her unlawful dismissal.

Rejecting the ALJ's decision, the commissioner found that the teacher did not satisfy the statutory criteria for obtaining tenure.  Critical to the commissioner’s ruling was that the teacher did not perform any services during the entire academic year of her leave, even though she was deemed to be an "employee" of the district. Acknowledging that under certain circumstances the case law has permitted a teacher to acquire tenure despite taking a leave of absence during the probationary period – provided that the district had ample time to assess performance – the circumstances in this case did not warrant the relaxation of the service requirements. This situation was distinguishable from cases involving "an occasional absence for illness or other excuse" or a paid, involuntary leave.   The commissioner pointed out that the teacher would have earned tenure had she worked one day during the year of her maternity leave, because she would have then qualified under another section of the law providing tenure when a teacher works "the equivalent of more than three academic years within a period of any four consecutive academic years." However, her failure to work for at least one day or to provide any actual service to the district during the entire leave year resulted in a break in service, and did not count toward the "more than three" academic years required. Since she failed to satisfy the service requirements, she had no tenure rights when the board non-renewed her.  The teacher then appealed the Commissioner’s ruling to the Appellate Division of the State Superior Court.

On appeal, the panel found that the teacher who took maternity leave had continued employment such that she had attained tenure and was entitled to be rehired.  Arguing that the employer had 30 months – an adequate period –  to evaluate her fitness for tenure, and did, in fact, evaluate her the requisite number of times in that period neutered the district’s argument associated with insufficient evaluative data.  The court also found that there was nothing to suggest that she did not remain an employee when she was on leave. Finally, the Court interpreted the statute in square with the public policy purposes of the Tenure Act and the federal Family and Medical Leave Act (FMLA), under which she took her leave – namely entitling employees to take reasonable leave . . . for the birth or adoption of a child.