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FMLA and Obtaining Tenure in a School District

By Daniel T. Silverman Esquire, Costello & Mains 

Many young female teachers often worry about taking maternity leave prior to achieving tenure. There are protections in place that a school district may not discriminate or retaliate against a woman because she has become pregnant or taken leave. This post does not deal with that issue. Instead, this post addresses how time served is calculated for the purposes of achieving tenure when an employee has taken FMLA (or any other medical leave) prior to receiving tenure.

In the matter of Kolodziej v. The Board of Education of Southern Regional High School District, Ocean County, the Appellate Divisions considered the interesting question of how the exercise of FMLA Leave impacted a teacher's right to tenure. The Plaintiff had begun as teacher for the Defendant School District in 2002. She was absent from school for the entirety of the 2005-2006 school year and returned for the 2006-2007 school year. At the time, tenure was determined by what is commonly referred to as "three years and a day," meaning having taught for three consecutive school years and the first day of the fourth. Plaintiff was laid off as a part of reduction in force (RIF) prior to the 2007-2008 school year.

When an additional position was posted, Plaintiff claimed that as a tenured teacher her seniority entitled to her to an offer of the position. She then filed a claim with the Department of Education where an Administrative Law Judge found that she was, in fact, tenured. As a result, she was entitled to the position as well as $137,212.00 in back pay. The Commissioner of Education rejected that decision and concluded that Plaintiff had not yet obtained tenure. The Appeal followed.

The Appellate Division found that there was no evidence to suggest that Ms. Kolodziej had not remained an employee during the 2005-2006 school year noting that she had returned to the same position and did not have to reapply or interview for the same. The Appellate Division also noted that the public policy goals of the FMLA as well as New Jersey's Family Leave Act would be served by counting that period of service towards her tenure. "Thus, it is clear that the FMLA seeks to return the employee to the same position that he or she was in before the leave, treating the leave itself not as a cessation, but instead as a temporary pause in the ongoing working relationship. To therefore punish an employee by denying her tenure she had earned over three years of continuous employment and satisfactory evaluations simply because she took the leave that her employer granted her, would not serve the purposes of the FMLA."

The takeaway from this case is simple. Time absent from work for FMLA or any other form of medical leave (either to care for one's self or family member) must be counted towards a teacher's right to tenure. As this State continues to attempt to erode tenure rights, this is a positive development for teachers.

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