By: Nisha S. Talati, Esq. and Ty Hyderally, Esq.

 Recently, the New Jersey Supreme Court considered the Appellate Division’s decision upholding the award of benefits to a tenured pre-school teacher, Ms. Parsells, who worked full-time and did not knowingly waive her tenured right to a full-time teaching position by temporarily transferring to a part-time teaching position. See Catherine Parsells v. Board of Education of the Borough of Somerville, 2023 N.J. LEXIS 642, 2023 WL 3986488. The Supreme Court held under common law principles, “[t]he intent to waive need not be stated expressly, provided the circumstances clearly show that the party knew of the right and then abandoned it, either by design or indifference.” Knorr v. Smeal, 178 N.J. 169, 177 (2003). The Court held that, in this case, there was no valid waiver.

The Appellate Division affirmed a final agency decision and extended Bridgewater-Raritan Education Ass’n v. Board of Education of Bridgewater-Raritan School District, 221 N.J. 349 (2015), 472 N.J. Super. 369, 372 (App. Div. 2022), to impose a duty on school boards to “provide advance notice to their tenured full-time teachers that they may not get their full-time teaching job back if they voluntarily take a part-time teaching job.” 472 N.J. Super. at 378.

However, the New Jersey Supreme Court overturned the Appellate Division’s decision.  The New Jersey Supreme Court rejected imposing a duty on school boards to notify, in advance, full-time teachers who voluntarily transfer to part-time positions that they may not have a right to return to their full-time position.

A brief synopsis of the facts are as follows: Ms. Parsells was employed as a full-time teacher from 2010 to 2016. In 2016, she opted to become a part-time teacher, which the Board of Education of the Borough of Somerville (the “Board”) approved in 2017. At the time of the approval, the Board did not inform Ms. Parsells that she would lose the right to return as a full-time employee by voluntarily changing her position to a part-time position.  Subsequently, when Ms. Parsells tried to change her position from part-time to full-time, the Board informed Ms. Parsells would have to reapply in order to be considered a full-time teacher. Simultaneously, the Board selected other non-tenured teachers over Ms. Parsells, and Ms. Parsells filed a complaint with the appropriate entity. Ms. Parsells’ case was heard before an Administrative Law Judge (“ALJ”) and further by the New Jersey Commissioner of Education. To see a full explanation of the facts of the case, please see a blog written by our firm in July 2022 titled “Before They Go, Let Them Know”: https://www.employmentlit.com/2022/07/22/before-they-go-let-them-know/.  The ALJ considered whether the Board had an affirmative duty to notify Ms. Parsells of the fact that she lost tenure as a full-time teacher when she voluntarily changed her status to a part-time teacher.     

Regarding the duty to notify, the New Jersey Supreme Court agreed with the Board, and ruled that, “the mere existence of the Tenure Act” provides no basis for a notification duty.  The New Jersey Supreme Court further opined that the Appellate Division’s imposition of a duty constituted error. Parsells v. Board of Educ. at 19.  The Court considered the Appellate Division’s consideration of Section 18A:16-1.1 of the 2015 New Jersey Revised Statutes, and the Tenure Act.  After this consideration, the Court ruled that there was no basis for interpreting the Tenure Act to create an affirmative duty for a Board to have to inform a teacher that they were giving up tenure in changing their status from full-time to part-time.  Although there may have been an affirmative duty imposed in Bridgewater-Raritan, there was no such duty in the Parsells’ case.  Despite this, the Court did encourage school boards to inform their tenured teachers of the impact to their tenure rights if a teacher was voluntarily changing their status but imposed no mandatory obligation.

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