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Commissioner of Education Rules Bedside Tutor Position Not Eligible for Tenure Accrual

By on December 3, 2018 in Labor & Employment with 0 Comments

On November 9, 2018, the New Jersey Commissioner of Education (“Commissioner”) concurred with an Administrative Law Judge’s finding in Mirda v. Board of Education of the Union County Educational Services Commission that the position of Bedside Tutor fell within the substitute teacher exception and is not eligible for tenure accrual. The Union County Educational Services Commission Board of Education (“Commission”) provides various services to school districts in Union County, including one-to-one bedside instruction at hospitals to students enrolled in Union County schools. Bedside Tutors are paid at an hourly rate, do not receive benefits or paid holidays, and are not guaranteed a certain number of work hours/days or yearly salary.

Gail Mirda, the Petitioner in this matter, was employed by the Commission as a Bedside Tutor for fifteen years. While her work hours varied, she worked about six to eight hours per day for the last seven years. Petitioner argued that because she worked more than three full-time years in the Bedside Tutor position, which required a teacher certification, she is entitled to tenure pursuant to N.J.S.A. 18A:28-5. She also argued that the substitute teacher exception under  N.J.S.A. 18A:16-1.1 did not apply because she was not replacing a specific employee of the Commission.

The Administrative Law Judge (“ALJ”) summarily rejected Petitioner’s arguments. In short, the ALJ analogized the Bedside Tutor position to that of a Home Instructor and followed a series of cases in which Home Instructors were determined not to be tenure-eligible because their positions and responsibilities fell within the substitute exception to the Tenure Act. Bedside Tutors, like Home Instructors, substitute for a regular classroom teacher due to a student’s inability to attend school and are not regular teaching staff members. The ALJ reasoned that Petitioner was not required to substitute for a specific employee of the Commission in order to escape the substitute teacher exception. As such, Petitioner was not entitled to tenure accrual in the position of Bedside Teacher.

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Sanmathi (Sanu) Dev

About the Author

About the Author:

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA. In connection with these representations, she is experienced in handling matters before State and Federal courts, including the Office of Administrative Law. Ms. Dev is an experienced special education litigator and defends school districts in due process hearings from inception through trial. In addition, she has handled matters before governmental agencies, including the U.S. Office for Civil Rights and New Jersey Division on Civil Rights. Ms. Dev routinely conducts training and seminars, drafts policies and manuals, and provides strategic advice to school administrators regarding school law issues. Ms. Dev was recently recognized as one of South Jersey’s Awesome Attorneys as published by South Jersey Magazine. She is licensed to practice law in New Jersey, the District Court for the District of New Jersey and Pennsylvania.

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