New Jersey law overrides union contract on custodians’ pandemic pay

When Governor Philip D. Murphy declared a public health emergency in March 2020 and closed schools to students, custodians kept reporting in person. The Board paid them the full 250 percent at first. Then, on July 13, 2020, it stopped the extra 150 percent. 

The reason was a new state law. In April 2020, the Legislature amended N.J.S.A. 18A:7F-9, adding language that said public school employees covered by a union contract “shall be entitled to compensation … as if the school facilities remained open for any purpose.” The Board read that to mean standard pay only, with no emergency premium. 

The unions disagreed and filed grievances with the Public Employment Relations Commission. An arbitrator sided with the custodians in January 2022, reasoning that the schools were “closed” in the ordinary sense because students were not learning in the building. A trial court confirmed the award. But the Appellate Division reversed, and the Supreme Court agreed. 

The court held that the statute’s plain language controlled. Because the schools closed due to a declared emergency for more than three consecutive days, and the custodians were covered by a union contract, the law required they be paid as if the buildings stayed open – regular salary, not the premium. The statute allowed extra pay only for “additional work performed” that was separately negotiated, and the custodians did not claim any. The award was sent back to be vacated. 

The Chief Justice dissented. He argued the law was ambiguous and that the sponsors’ statement said nothing in the bill should “limit, supersede or preempt” existing union contracts. Under the deferential standard for arbitration awards, he wrote, the arbitrator’s reading was at least reasonably debatable and should have stood.