Preparing for Layoffs

Presented by:

Eric Stevens

Michael Tucker

Attorneys at Law

Small School Districts Association of California

Certificated Layoffs

Identify Budget Cuts

• Identify areas that may be reduced.

• Determine number of certificated employees to be reduced.

• Over-notice?

Identify Budget Cuts

• Determine total full-time equivalents (FTEs).

–Do not count temporary employees filling position of employees on leave.

–Do include employees on leave.

Statutory Basis

• Particular Kinds of Service (“PKS”)

• Decline in Average Daily Attendance (“ADA”)

Particular Kinds of Service • May terminate the services of not more than

a corresponding percentage of certificated employees at the end of the year:

– Whenever a particular kind of service is to be reduced or discontinued not later than the beginning of the following school year; and

– When in the opinion of the governing board of the district it shall have become necessary to decrease the number of permanent employees in the district.

Identify Services to Reduce or Discontinue

• Eliminate or reduce non-mandated services.

• Reduce mandated services to minimum level required by law.

• Reduction based on change in method by which a service will be provided.

Services Described with Sufficient Specificity

• Example:

– “middle school instruction at grades 7-8” is too generic.

– Grade 7 Music

– Grade 8 Social Science

Services Described with Sufficient Specificity

• Example:

– Reduction in “Kindergarten through Fifth Grade Classroom Teaching Services” sufficiently specific.

– Elementary school students are assigned to specific classroom with single teacher instructing same students in multiple subjects.

Motivation for Reducing Services

• Board’s discretion to determine the numbers by which the District will reduce a particular service.

San Jose Teachers Assn. v. Allen (1983) 144 Cal.App.3d 627.

• Board’s decision may not be arbitrary or capricious.

What is NOT Arbitrary and Capricious?

• Written resolution describing:

– Facts/evidence on which the Board based its decision.

– What the Board did.

– Why. (Tie back to facts.)

• As long as the decision is somewhat supported by the facts/evidence, courts and agencies should respect the decision.

Decline of ADA • May terminate the services of not more than a

corresponding percentage of certificated employees at the end of the year:

–Whenever in any school year the ADA in all of the schools of a district for the first 6 months in which school is in session shall have declined below the corresponding period of either of the previous two school years.

Ed. Code § 44955(b).

How to Calculate

• Must use ADA from first six (6) months school was in session.

– August 2017 through January 2018

Compared to:

– August 2016 though January 2017; OR

– August 2015 though January 2016.

Attrition

• Must Consider Positively Assured Attrition (i.e., known prior to March 15)

–Retirements;

–Resignations;

–Deaths; and

–Non-reelects.

Attrition

• Not required to consider certificated employees who request leaves of absence for the next school year in determining attrition occurring during the computation period.

• Relationship of employer and employee continues to exist although the teacher is on leave of absence. Campbell Elementary Teachers Assn. (1978) 76 Cal.App.3d 796

Attrition

• Not required to considered attrition when doing a PKS reduction.

• In determining the number of certificated employees that can be dismissed due to ADA decline, required to consider the number of certificated employees who have departed the system in the computation period.

Attrition

• Why? May only reduce employees when reduction in ADA makes it “necessary” to do so.

• Ignoring normal attrition in certificated personnel results in a reduction of force not “necessarily” required by decline in ADA. Burgess v. Board of Education

(1974) 41 Cal.App.3d 571.

Example of How to Calculate ADA

•Base Year: 2015-16

•Staff may be reduced by 15%

•15% of 45.0 FTE = 6.75 FTE

•Current year = FTE 40.0

•Natural attrition of certificated employees of 5.0 FTE

•May reduce an additional 1.75 FTE

2015-16 2016-17 2017-18 (current year)

ADA (first 6 months)

1,000 900 850

Full time equivalents (FTEs)

45.0 42.5 40.0

% Decline in ADA to Current Year

15% 10%

Superintendent’s Recommendation

• By March 15, Governing Board shall be given written notice by the District superintendent or designee that it has been recommended that a layoff notice be given to employee and stating the reasons therefor.

Ed. Code § 44949(a).

Board Resolution

• Adopt Board Resolution based on Superintendent’s recommendations regarding reduction in services.

• Late February/Early March.

Who Will Be Laid Off?

• Order of lay-off is determined based upon employment classification and seniority.

• Also takes into account skills, credentials and competencies.

Employment Classifications

• Ed. Code classifies certificated employees into four categories:

– Permanent

– Probationary

– Temporary

– Substitute

• If employment contract clearly conflicts with Ed. Code, Ed. Code controls

Permanent Employees • ADA of 250 or more: Upon reelection after

completing two complete consecutive years of probationary employment.

• ADA of less than 250: Upon reelection after completing three complete consecutive years of probationary employment.

Probationary Employees • Default category – if an employee is not

permanent, temporary or a substitute, then he or she is probationary.

• Interns are probationary employees – Two categories of interns: district interns and

university interns. – District interns are expressly made probationary

employees under Ed. Code § 44885.5. – Ed. Code does not specify classification of university

interns, so probationary by default, but do not have dismissal rights under Ed. Code §§ 44948 and 44949. (Ed. Code § 44464)

Non-Reelection of Probationary Employees

• Governing Board required to notify employee, on or before March 15 of the employee's second complete consecutive school year of employment of decision to not reelect the employee for the next succeeding school year to the position. Ed. Code § 44929.21.

• Probationary teachers may be non-reelected without any showing of cause, without any statement of reasons, and without any right of appeal or administrative redress.

Non-Reelection of Probationary Employees

• Take non-reelect decisions into account when determining natural attrition.

• Do not use non-reelection as a substitute for a layoff.

Non-Reelection of Probationary Employees

• Where it is undisputed that termination was prompted by statutorily designated conditions of decline in ADA, reduction or discontinuance of services, or modification of curriculum, then school district is required to provide appropriate notice and right to hearing in accordance with layoff procedures.

Cousins v. Weaverville Elementary School District

(1994) 30 Cal.Rptr.2d 310.

Non-Reelection of Probationary Employees

• In Cousins v. Weaverville Elementary School District, principal provided employee a letter explaining reason for termination stating the termination was “the result of a financial exigency and is not related to teaching performance. If a position were available for which [petitioner] were qualified, I would have no reservations about hiring her.”

Personal Service of Non-Reelection Notice Required

• Statute providing that school district must notify second year teacher by March 15 of its decision not to rehire him/her for next year, although silent on method of notice, contemplated personal service, and thus notice mailed March 12 but not received by teacher until after March 15, was untimely and teacher was deemed reelected.

Hoschler v. Sacramento City Unified School Dist.

(App. 3 Dist. 2007) 57 Cal.Rptr.3d 115.

Temporary Employees

• Temporary employees

– May only be classified as temporary if within one of several specific categories in Ed. Code.

– Must be given notice of temporary status, term of employment, and salary at time of initial employment. (Ed. Code § 44916)

Temporary Employees

• Long-term temporary employees, employed for up to a year or more: – Teachers in projects conducted under contract with public

or private agencies or non-mandatory categorically funded projects.

– Replacements for teachers on leave of absence. – Replacements for teachers on disability leave for up to 39

months. – Retired teachers who have been reemployed for certain

teaching, support or assessment assignments. – Employees employed to teach adults for not more than

60% of the hours per week considered a full-time assignment.

Temporary Employees

• Short-term temporary employees, employed for 3-4 months on limited or emergency assignment:

– Teachers assigned to temporary classes lasting 3 months or less.

– Teachers of special day and evening adult education classes or schools for migratory populations for not more than four months in any term.

– 20-day emergency employees hired to prevent work stoppage in case of emergency.

– Coaches on limited assignment.

Temporary Employees

• Short-term temporary employees, employed for 3-4 months on limited or emergency assignment (cont’d):

– Teachers hired only for first semester in high school or unified district when mid-year graduation is expected to reduce student numbers.

– Employees hired for less than one year due to temporary increases in enrollment at county community schools or juvenile court schools.

Temporary Employees

• May be immediately dismissed at the pleasure of the Board before serving at least 75% of the school year. (Ed. Code § 44954)

• After serving 75% of the school year, may be non-reelected for the next school year if notified before the end of the school year, effective at start of next school year.

• If not laid off pursuant to Ed. Code § 44954(b), required to be reemployed for the following school year in any vacant position.

(Ed. Code § 44918)

Substitute

• Certificated employees filling positions of regular employees absent from service.

• Must be substituting for an actual, individual teacher who is absent.

Seniority

• Seniority is based on first date of paid service in a probationary position.

• First date of paid service may include early reporting for training/orientation if: – It was mandatory

• Not just believed to be mandatory by teacher

• Not just stated to be mandatory by district

• But absence must have consequence and be condition to employment (Claremont USD; Hawthorne)

– The teacher was paid at his or her per diem rate (not stipend)

Seniority

• If reemployed after resigned or dismissed for cause, reemployment date is date of rehire, – However, if permanent employee resigned and

returns within 39 months – new seniority date but still considered permanent.

• If reemployed after being laid off, not considered a break in service, employee’s original date of hire stands,

Seniority

• Substitute or temporary may “tack on” one year of service if:

– employed as a probationary employee for a school year, and

– During the immediately preceding school year (s)he (1) served 75% of the number of days that the regular schools of the district were maintained and (2) performed the duties normally required of certificated employees.

Seniority • Tie breaking

– When two employees first rendered paid service on the same date, the board shall determine the order of termination solely on the basis of the needs of the district and its students. (Ed. Code § 44955)

– Criteria based on district’s best interests may include: • Recent experience

• Credentials held (flexibility)

• Bilingualism

• Graduate training

Skills, Credentials and Competencies

• Districts may “skip” junior employees and layoff more senior employees when:

– specific need for personnel to teach a specific course or course of study, and

– only the junior employee has special training and experience necessary to teach that course or course of study. (Ed. Code § 44955)

Skills, Credentials and Competencies

• Facts and circumstances matter.

• If a junior teacher is skipped based on holding a credential, he or she must actually be assigned to a position requiring that credential.

• Similarly, skills must be actually used in an educational program.

Practical Considerations

• Board should adopt resolution setting out skipping or tie-breaking criteria.

– Skipping resolution not required, but good practice

• Board should give teachers advance notice of skipping and tie-breaking criteria.

Creating Dismissal List

ADA reductions: 1. Reduce all temp employees (no seniority); 2. Reduce probationary staff, beginning with least

senior; 3. Reduce permanent staff, beginning with least

senior; 4. Total number of employees eliminated may not

exceed ADA calculation; 5. At any point, skip based on skills, credentials

and competencies.

Creating Dismissal List PKS reductions: 1. Identify least senior person performing service

to be reduced or eliminated; 2. If probationary or permanent, that employee

may “bump” least senior person serving in a position that he/she is competent and credentialed to fill;

3. Bumped employee may bump least senior person serving in a position that he/she is competent and credentialed to fill;

4. Repeat until no other employees may bump.

Practical Considerations

• Once administration has determined seniority list, it should be posted in an accessible area.

• Each teacher (including temps and substitutes) should also receive notice of classification, seniority and credentials.

Practical Considerations

• Provide copy of seniority list and other information to collective bargaining representative.

• Involve association as early in process as possible.

• Prepare a file of back-up documentation.

Layoff Notices

• No later than March 15 and before providing final notice of layoff, the superintendent must give written notice to employee and board of layoff recommendation. (Ed. Code § 44949)

Layoff Notices

• March 15 notice should:

– State reason for layoff (ADA, PKS or combination of the two);

– For PKS reduction, designate service(s) to be reduced;

– Attach board resolution; and

– Attach form to request hearing.

• Kept confidential until employee has requested a hearing or waived right to a hearing, except as necessary in performance of duties.

Layoff Notices

• Precautionary notices should be sent to employees whose status is uncertain, including:

– Disputed seniority dates

– Disagreement over temporary vs. permanent / probationary status

– Same first date of paid service as probationary employee

– “Buffer” okay, so long as not in bad faith (Needles (OAH No. 2009031322))

Layoff Notices

• Service of layoff notice to employee: – Personal service – employee should sign

acknowledgement of receipt

– Registered or certified mail with return receipt sent to employee’s last known address

– Not shoved under doormat (Loleta (OAH No. 2009040023))

• Notice of recommended dismissal must also be sent to board by March 15.

Layoff Notices

• Board’s final notice of layoff must be given to employees before May 15.

– Service must conform to same requirements as March 15 notice.

• Failure to provide employee with March 15 notice means that employee is reemployed for the following school year.

Right to Request Hearing

• District must give employees at least 7 days from date on which notice served on employee to request a hearing.

• If the notice is provided before March 15, employee should nevertheless have at least 7 days from March 15 to request a hearing.

• Hearing is to determine whether there is cause to dismiss employee.

Waiver of Hearing

• Failure of employee to request a hearing on or before date specified constitutes a waiver of his or her right to a hearing. (Ed. Code § 44949(b))

• However, OAH will consider:

– Principles of due process, basic fairness, and equity.

– Lack of prejudice to district.

– Whether good cause is establish by teacher for lack of timely filing.

• Example: Teacher on maternity leave and in Hawaii when layoff notice was mailed to her.

Hearing Procedures: Contract with OAH

• Local Educational Agency Agreements with Office of Administrative Hearings

• To see list of school districts with local agency agreements:

• http://www.dgs.ca.gov/oah/TeacherLayoffs.aspx

• OAH may not schedule hearing until agreements in place.

Hearing v. Settlement

• Costs of Hearing – District’s legal costs

– Administrative staff time

– Substitutes

– All expenses of hearing, including cost of ALJ, paid by District. (Ed. Code 44949(c)(3)).

• ALJ Fee: $229/hour, increasing to $270/hour.

• Court reporter (approx. $250 to 500 per day).

Hearing v. Settlement

• If there are no real issues, discuss with opposing counsel possibility of settlement.

– Extended time for reemployment

– Extension of benefits through the summer

– Paid leave to seek reemployment

Classified Layoffs

Classified Layoffs

• Some similarities to certificated layoffs, but much simpler.

• Lack of funds or lack of work.

• Flexibility in timing.

• Streamlined process.

Know Your Contract

• Collective Bargaining Agreements typically alter or supplement the default rules.

• If your CBA is silent, you still have a duty to negotiate: – Impacts and effects of layoff decision, but not the

decision itself, and

– Decision to reduce contract hours/days in lieu of layoffs.

Impacts and Effects

• Commonly addressed in CBA: – Reasons for layoffs

– Notice of layoffs

– Order of layoffs

– Bumping rights

– Calculating seniority (hire date vs. hours in paid status)

– Tie breakers

– Reemployment

Key Classified vs. Certificated Similarities

• Laying off positions, not people.

• Advanced notice and opportunity to object before decision is implemented.

• “Lack of Work” somewhat similar to “Particular Kind of Service.”

Key Classified vs. Certificated Differences

• Role of CBA vs. the Education Code.

• “Lack of Funds” can be very different from “Decline in ADA.”

• Layoff order virtually always based on length of service.

Reminders

• Advanced notice required once “firm decision” reached to do layoffs so employee/union can negotiate impacts and effects. – 60 days is normally required, or

– April 29 if specially funding is expiring at end of school year.

• Seniority based and length of service in a higher classification counts.

Reminders

• 39 month rehire list. – Rehire in order of seniority.

– If you know employee is qualified for another classification, must offer position to employee before offering to new applicant.

– Rehired and fail the probationary period = back on the rehire list.

• Voluntary demotion or hours reduction to avoid layoff = placement on rehire list and right to recover position/time as if laid off.

10 Common Mistakes

10 Common Mistakes

1. Miscalculating seniority start date

2. Missing credentials

3. Misclassification of temporary employees

4. Failure to give advance notice of skipping criteria

5. Mistaken assumptions for ADA calculations

10 Common Mistakes (cont’d)

6. Failure to give proper notice

7. Missed deadlines

8. Vague or impermissible PKS categories

9. Lack of back-up for application of skipping/tie-breaking criteria

10.Failure to consider PR implications

Contact Us

8801 Folsom Blvd., Ste. 285

Sacramento, CA 95819

Tel: (916) 706-1255

Fax: (916) 706-2672

Website: www.girardedwards.com E-mail: stevens@girardedwards.com tucker@girardedwards.com