A Capehart Scatchard Blog

Passage of Chapter 79 Makes Subcontracting More Cumbersome

By on October 15, 2020 in Labor & Employment with 0 Comments

Passage of Chapter 79 places new restrictions on a school district’s ability to subcontract work performed by its existing employees.  Chapter 79, which was approved on September 11, 2020 and became effective immediately, prohibits a school district from entering into a subcontracting agreement affecting the employment of any employees in a collective bargaining unit during the term of an existing collective bargaining agreement (“CBA”). A district may enter into a subcontracting agreement for a period following the term of the current CBA if the district:

  1. provides written notice to the majority representative of employees in each collective bargaining unit which may be affected by the subcontracting agreement and to the New Jersey Public Employment Relations Commission (“Commission”) no less than 90 days before the district requests bids or solicits contractual proposals for the subcontracting agreement; and

  2. offers the majority representative of the employees in each collective bargaining unit which may be affected by the subcontracting agreement the opportunity (i) to meet and consult with the district to discuss the decision to subcontract, and (ii) to engage in negotiations over the impact of the subcontracting.

The decision to subcontract is not mandatorily negotiable.  The school district’s obligation to negotiate will not preclude its right to subcontract should no successor agreement exist.  However, all aspects or actions relating to or resulting from a district’s decision to subcontract including, but not limited to, whether or not severance pay is provided, are expressly made mandatory subjects of bargaining by Chapter 79. 

Displaced employees are given certain rights by Chapter 79.  These include retention of previously acquired seniority and recall rights whenever the subcontracting terminates.

A district that violates any provision of Chapter 79 is deemed to have committed an unfair practice which can have significant financial consequences.  Any affected employee or majority representative may bring an unfair practice charge with the Commission.  If the charging party prevails, the employee is entitled to a remedy including, but not limited to, reinstatement, back pay, back benefits, back emoluments, tenure and seniority credit, attorney’s fees, and any other relief the Commission deems appropriate.

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Robert Muccilli

About the Author

About the Author:

Robert A. Muccilli, Esq. is Co-Chair of Capehart Scatchard’s School Law Group and a Shareholder in the Labor and Employment Group. For over 25 years, he has focused his practice in the areas of school law, and labor and employment. He has represented school districts with respect to a variety of education law issues involving students, teachers, school construction and special education issues including questions pertaining to inclusion, least restrictive environment, discipline, behavior management, transition, evaluation, discrete trial instruction, medically fragile students, dyslexia, Down Syndrome, Aspergers Syndrome, and equal access to activities and services for disabled individuals. He has also been recognized as one of South Jersey’s Top Attorneys as published by SJ Magazine. Mr. Muccilli is admitted to practice law in New Jersey, the United States District Court for the District of New Jersey and Washington, DC.

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