Efforts are underway to eliminate the requirement that New Jersey teachers reside in the state. Under Senate Bill 4203, public school teachers and other school employees would be exempt from the residency requirement.
New Jersey First Law
The New Jersey First Act, enacted in 2011, established residency requirements for most public officers and employees. The rationale is that state workers paid by New Jersey taxpayers should live in the state and pay taxes here as well.
The New Jersey First Act specifically requires employees of all public employers (including state, county, and municipal governments, as well as local school districts), public agencies, authorities, boards, bodies, commissions, public institutions of higher education, certain quasi-public entities, and all school boards to reside in the State of New Jersey unless otherwise exempted under the law. Under the statute, exemptions to the residency requirement may be granted based on a proven “critical need or hardship.” Decisions are made by the five-member Employee Residency Review Committee.
In February, a New Jersey Superior Court judge ruled that the law was unconstitutional, specifically citing the vagueness of the exemption provision. The legal challenge was brought by Rebecca Drake, a Somerville English teacher, who faced termination after financial issues forced her to move in with her boyfriend who lives across the border in Pennsylvania. Drake applied for a waiver under the New Jersey First Act, but was initially denied. The Somerville Board of Education filed suit to pursue her termination.
“The Court finds that the N.J. First Act’s waiver provision does violate due process principles in that the standards applicable to waiver requests [are] unconstitutionally vague,” Judge Thomas Miller wrote. “The statutory standard of ‘critical need or hardship’ provides only a vague standard that is likely subject to a different interpretation by virtually every person who considers it.”
The court’s decision only applies to Drake’s case and did not strike down the law for all public employees. “The Court agrees, however, that the matter should now be left to the Legislature as to whether the Act is amended to be constitutionally compliant, or whether other action is taken by the Legislature,” Judge Miller wrote.
Changes to School Employee Residency Requirement under Senate Bill 4203
While legislation has been previously introduced to remove the residency requirement, it has failed to advance. In support of the latest bill, sponsors cite staffing shortages, which have been exacerbated by the COVID-19 pandemic.
Senate Bill 4203 eliminates the requirement that employees of a school district have their principal residence in New Jersey. Notably, the bill retains the residency requirement for all other public officers and employees.
The bill also expressly provides that no provision of the law that establishes the residency requirement will be construed as requiring an employee of, or a person hired by, a school district, charter school, or renaissance school project to comply with the residency requirement. Notwithstanding this elimination of the residency requirement, Senate Bill 4203 does require a school district, charter school, or renaissance school project seeking to fill an open position to make a good faith effort to hire a person who maintains a principal residence in the State for the open position.
The State Senate Education Committee unanimously approved the bill on December 16, 2021. A companion measure has not yet been introduced in the State Assembly.
If you have legal concerns related to the proposed legislation and how it may impact your school district, we encourage you to contact a member of Scarinci Hollenbeck’s Education Law Group at 201-896-4100.