Will New Jersey ESPs Finally Get Justice?

Like school staff around the country, education support professionals (ESPs) in East Orange, N.J., were required to report to work during the scariest days of the pandemic, even with school buildings closed.

“When we were directed to return to work, … the death tolls and hospitalizations were very high,” recalls Lynnette Joyner, president of the East Orange Educational Support Professional Association (EOESPA). “All the custodians were afraid and stressed, not just for our lives, but for … the loved ones we lived with. We didn’t want to bring in any germs, and so many of us had to quarantine in our homes.”

Contracts for EOESPA and the East Orange Maintenance Association (EOMA) specifically address compensation for work completed during a declared state of emergency, which supersedes all other contract language on overtime.

So, in March 2020, when New Jersey Gov. Phil Murphy signed an executive order declaring a state of emergency and closing school buildings, support staff continued to work and continued to be paid, per the contract.

But in June 2020, the East Orange School District informed EOESPA and EOMA members that starting in July, they would no longer receive state-of-emergency pay.

The district claimed, “No one thought an extended state of emergency would occur.”

EOMA president Mark Richards says,  “We signed up to be security and maintenance professionals, knowing that we were working in difficult or even dangerous situations. No one could have predicted working during a pandemic. We had struggles, and we showed up.”

And so began a three-year saga in which EOESPA, EOMA, and the New Jersey Education Association (NJEA) teamed up to get justice.

2020: Unions achieve an early win

Working together, the three unions filed grievances, but the East Orange Board of Education balked. The board claimed that since schools weren’t closed in summer and fall 2020, it was no longer necessary to pay individuals more for the same work.

The unions stood firm in their position: The state of emergency was still in effect. The grievance then went to arbitration. The decision upheld each group’s contract: The custodians’ group would receive two-and-a-half times their salary rate and the security group would receive time and a half.

The maintenance group—per its contract, which says that if the governor declares a state of emergency, no overtime is awarded—would receive only their regular hourly rate.

In all, roughly $4 to $5 million was awarded to these members.

2021 – 2022: The school board won’t pay up

Despite the ruling, the board of education refused to pay support staff what they were owed.

In June 2021, NJEA sought a judge’s certification to enforce the award. The judge ordered the district to pay, but the board still did not comply.

The stalemate continued until summer 2022, when NJEA filed a civil contempt charge—which applies when one party fails to follow a court order, further injuring the other party’s rights.

In the filing, NJEA demanded that the board pay all fines as well as the union’s attorney fees.

Late 2022: A bittersweet victory

In another win for the union, the judge held the East Orange Board of Education in contempt. The ruling stated that no fees would be imposed, provided the board paid the EOESPA and EOMA members by September.

Finally, after nearly two years, the district began to comply—sort of.

The district provided a list of members who would be paid retroactively, but it quickly became clear that not all support staff would receive what they were owed:

• The list did not include people who had worked during the pandemic and had since left the district or retired.
• ESPs were required to work over the summer, even though district buildings did not open for summer school. Still the district claimed that this period should not count toward time worked and the ​award stipulations.
• The district used an incorrect base salary formula to calculate the monies owed.
• The board acknowledged that there are no official records of who worked where and when during the pandemic, claiming problems with its card swipe system.

“It was all very bittersweet,” Joyner says. “I couldn’t enjoy the fact that we had achieved justice when I knew the numbers were inaccurate.”

On Oct. 6, a mediator was brought in, and all parties began to compare attendance records. The board offered to use whichever attendance records would be most beneficial to members.

Less than a week later, additional checks were issued to members, but they were sporadic, inaccurate, and not fully compliant with the award.

2023: Patience paves a path to justice

In March, the matter went to court, and the judge again found the board in contempt. This time the judge ruled to enforce the penalties, ordering the district to pay NJEA’s attorney fees.

The judge also considered sanctions against the board members individually for each person’s role in disregarding the order.

The judge wasn’t the only one upset. EOESPA and EOMA members were outraged.

“At this point, we fully learned that we are hardworking people who are not appreciated by our school district leaders,” Joyner declares.

In June, the local unions, NJEA, and district representatives met with an arbitrator from the Public Employment Relations Commission. On Oct. 16, the East Orange ESPs received the arbitrator’s award. It includes an additional $1.3 million to be paid out for the ESPs’ work during the pandemic and an order that full payment be made by Dec. 15, 2023.

“I hope other ESPs can learn from this experience to never give up,” Richards says.

“It can be exhausting to fight for things that you shouldn’t have to fight for, but you need to just keep going and stay focused.”