A group of East Orange school custodians who worked cleaning buildings during the early days of the COVID-19 pandemic lost a major legal fight over extra pay last week.
The New Jersey Supreme Court ruled that the East Orange Board of Education did not have to pay the custodians more than double their regular salary for working while schools were closed to students.
The 6-1 decision overturned an arbitrator's award that had ordered the district to pay the workers extra wages for hours logged during the first year-and-a-half of the pandemic.
The East Orange custodians make about $40,000 a year, said Sanford Oxfeld, the attorney who argued the case on their behalf.
He was disappointed with the state Supreme Court's decision.
The judges needed to decide if the arbitrator's decision to pay the custodians extra wages was "reasonably debatable" and should stand, Oxfeld said.
"It's hard to see how a decision that two judges said was reasonably debatable, and all of a sudden it's not," he said of the Supreme Court's decision.
The case stems from the March 2020 order by then-Gov. Phil Murphy to declare a state of emergency and order schools closed to students.
A law passed in April 2020 required school districts to pay employees covered by union contracts "as if the school facilities remained open" during the pandemic.
Under their union contract, East Orange custodians were entitled to their regular pay plus an additional one-and-a-half times that amount on days schools were closed for an emergency.
Following the workers' contract, the district paid the higher rate. But it stopped paying the emergency pay on July 13, 2020, citing the new law.
The custodians' union and other affected workers' unions filed grievances. Arbitrator Jack Tillem sided with the custodians, ordering the extra pay for work performed from March 9, 2020, through July 4, 2021.
The award covered about 16 months. Because the district had already paid the higher rate for the first four months, that left about a year of emergency pay in dispute.
Tillem rejected the district's argument that schools were open and not officially closed because staff were in the buildings and meals were still being served.
"They want to know if school is open for the kids," he wrote. "If not, it's closed."
A trial judge upheld the award. But later, an appeals court reversed it. The state's Supreme Court affirmed the appellate court's ruling in the decision released Wednesday.
Writing for the majority, state Supreme Court Justice John Jay Hoffman said the law entitled custodians to their "standard salary, not their standard salary plus an additional one hundred and fifty percent."
The court said the award "directly contradicts" the law and was "neither fully supportable in the record nor justifiable."
State Supreme Court Chief Justice Stuart Rabner dissented in the case, writing that lawmakers said nothing in the bill should "limit, supersede or preempt" pay provisions in existing union contracts.
"Faced with an ambiguous provision of law, and more than one plausible way to interpret it, an arbitrator's judgment is 'at least reasonably debatable' and entitled to deference," he wrote.
Oxfeld said the state Supreme Court decision was unfair.
"They didn't pay any consideration to why the Legislature passed the statute. It was to protect and help employees who worked during COVID," he said.
In court filings, the school board argued it had a right to recoup wages it considered overpaid, and that doing so would return "over two million dollars of taxpayer money" to district operations.
Ramon Rivera, an attorney who represented the East Orange Board of Education, said he is reviewing the decision.
"I cannot comment on the Board's decision to seek repayment until I discuss with the client," he said. "However, we are pleased with the decision as we followed the law in how we compensated our employees and based upon the New Jersey Supreme Court's decision, they agree with us."
Oxfeld said requiring custodians to repay wages some had received following the arbitrator's ruling was not practical.
"Where are they ever going to get money when they don't have enough to live by now?" he said.
The New Jersey Education Association and IFPTE Local 195 backed the unions in friend-of-the-court briefs, arguing the law was meant to protect workers from losing pay, not to strip away benefits they had already negotiated.
The state Attorney General's Office weighed in on the other side, arguing the Legislature deliberately wrote the law to override conflicting contract terms.
"It makes sense that the Legislature would thus try to help local governments stay fiscally sound by limiting an extended period of premium pay for school employees absent their performing additional work," the office argued.
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