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Residency Requirement for Public Employees Receives Court Scrutiny

It is not uncommon for states or municipalities to require local residency for public employment. Proponents of residency requirements feel that they benefit the community because residents are more likely to have a strong commitment to the community, to pay local taxes, attend local schools and participate in community activities. Critics of residency requirements often argue that removing the choice of where to live imposes too great a burden on the employee and his or her family. Residency requirements have been litigated in our courts all over the country. The United States Supreme Court has upheld the constitutionality of residency requirements in general, finding that they are not per se irrational.

692696DC-BF0E-4D5C-B804-7228BA4B9D50-300x300In New Jersey, since September 1, 2011, the “New Jersey First Act”, signed into law by former Governor Chris Christie, has required most public employees working for the state, or one of its counties or municipalities, to live in New Jersey. That requirement has applied to employees of public agencies, commissions, public colleges and universities, and all school boards, among others to reside in the State of New Jersey unless otherwise exempted under the law. Exemptions were to be granted only when a worker could prove a “critical need or hardship.” Those who claimed qualification for the exemption had to present their case to New Jersey’s Employee Residency Review Committee and hope they were granted leave to live outside the state. As adopted by the Civil Service Commission, failure to comply with the State’s regulations on residence standards required the employee’s immediate suspension as “unfit for duty”.

An analysis by NJ Advance Media several years ago showed that in practice, the Employee Residency Review Committee has typically granted requests for exemptions to workers who can prove financial hardship or health concerns or who can submit proof that they are a “critical” employee who would be difficult to replace if they quit as a result of the residency requirement. Since its enactment, the Committee has granted exemptions to approximately 80% of applicants, with reasons ranging from child custody agreements to the inability to pay New Jersey’s high property taxes, to debilitating family illnesses. Other applicants have been granted permission to live outside the state simply by presenting a letter from their employer stating that they are “critical” to their work for the state.

Critics of the New Jersey First Act blamed it for NJ Transit’s trouble finding enough engineers to keep trains operating. In September 2018, the Employee Residency Review Committee voted on a blanket exemption for all NJ Transit employees in “mission essential” jobs, including train engineers, bus drivers, conductors and rail maintenance workers. Additionally, many public and charter school employees have sought exemptions since the law was enacted, and schools have been especially critical of how the law has made recruitment and retention of high quality job candidates harder for them.

The Committee’s granting of exemptions for hardship have also not always been uniform or predictable. For instance, Rebecca Drake, a teacher in the Somerville school district, first applied to the state Employee Residency Review Committee in 2017 for an exemption to the residency law due to serious financial problems including a recent divorce, home foreclosure and looming bankruptcy. At the time, her application was rejected because she did not provide sufficient proof of her hardship. Drake moved out of state anyway, just a few miles over the New Jersey border in Pennsylvania. Rather than offering support, the Somerville Board of Education hired a private investigator to track the teacher to her Pennsylvania home where he observed her leaving the house one morning to take her children to school. Using that information, the Somerville Board of Education filed suit against Drake, seeking to terminate her despite her tenure and over a decade of service to the children in the Somerville school district. Drake applied for the exemption again in May 2018, and it was granted, allowing her to live out of state as long as she was teaching in Somerville schools. However, by then the school district’s lawsuit was already underway.

In good news for Rebecca Drake and many other public employees like her, the judge in the case ruled last week that New Jersey’s residency requirement is unconstitutional. Superior Court Judge Thomas Miller ruled that the state residency law is unconstitutional as applied to Drake and cannot be used to fire her. Specifically, the Court found that the New Jersey First Act is “vague” and does not adequately make clear what types of hardship exemptions should be granted and to whom. Important to note is that the Court’s decision applies only to Drake and does not automatically protect any other public employees living out of state. In order to invalidate the law for all state employees, the Legislature would have to repeal or rewrite it.

The constitutionality of public employment residency requirements is a complicated and fact specific issue that requires the attention of a skilled attorney.

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