deciphering the education code: translating the law into sound personnel practices presenter: john...
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DECIPHERING THE EDUCATION CODE: TRANSLATING THE LAW INTO SOUND
PERSONNEL PRACTICES
DECIPHERING THE EDUCATION CODE: TRANSLATING THE LAW INTO SOUND
PERSONNEL PRACTICES
Presenter:
John R. Yeh Burke, Williams & Sorensen, LLP
ACSA PERSONNEL INSTITUTEOctober 7, 2015
Irvine, CA
The Tale of the TapeThe Tale of the Tape
The Education Code v.
the Telephone Book
Today’s ObjectivesToday’s Objectives
Employee Classifications Tenure and Seniority Reduction in Hours; Layoff Leaves of Absence
Other Slightly Less Indecipherable StatutesOther Slightly Less Indecipherable Statutes
The Rodda Act (Gov. Code § 3540, et seq): Unit certification and modification, collective bargaining, and unfair practice charges
Labor Code
Anti-Discrimination Statutes: Fair Employment & Housing Act, Federal Civil Rights Act, Americans with Disabilities Act, and Age Discrimination in Employment Act
Employee ClassificationEmployee Classification
Certificated Employees Classified Employees
Certificated EmployeesCertificated Employees
Any position “requiring certification qualifications” (Ed. Code § 44830)
Includes: • Teachers• Administrators• Counselors• Nurses• Psychologists• CDC staff (Ed. Code § 8366)
Classified EmployeesClassified Employees
Classified Employees: “Positions not requiring certification requirements” (Ed. Code § 45103(a))• Classified Management• Noon Aides (recent amendment to Rodda Act)• Confidential Employees (defined in Rodda Act)• Excludes Substitute and Short-Term Employees:
Defined as less than 75% of the school year in Ed. Code § 45103(b)(1)
• Also excludes temporary apprentices/experts and students (Ed. Code § 45103(b)(2), (3))
Classified: Short-Term/SubstitutesClassified: Short-Term/Substitutes
Classified Employees: Exclusions• Short-Term Employees: Providing
services not “needed on a continuing basis.” Board establishes finite end date.
• Substitute Employee: Replacing classified employee “temporarily absent from duty” – up to 60 calendar days. (Ed Code § 45103(d)(1))
• Shall not extend beyond 75% of the school year (Ed. Code § 45103(d)(2))
Certificated: Temps, Subs, etc.Certificated: Temps, Subs, etc.
Certificated Employees:• Substitute, Temporary, Probationary, and
Permanent• Substitute Employee: Ed. Code § 44917 (replacing
regular employee absent from service)• Temporary Employee: Ed. Code § 44920 (replacing
employee on leave of absence)– 14 different variations
• Probationary Employee: Ed. Code § 44915 - Default classification
• Permanent Employee
The Importance of Classification
Certificated: “The classification shall be made at the time of employment and thereafter in the month of July each school year.” (Ed. Code § 44916)
District must provide written statement “at the time of initial employment during each academic year.”
Temporary Employees: Written statement must indicate temporary status; otherwise, employee defaults to probationary (Kavanaugh requirements)
Practice Pointer
Every employee must have a classification
Possible “Categories” of Employees:• Certificated / Classified• Bargaining Unit / Non-Bargaining Unit• Classified: Confidential / Non-Confidential• Certificated: Administrator / Teacher
TENURE AND SENIORITY
LAYOFFS
Tenure & SeniorityTenure & Seniority
Classified Employees: Probationary Period• Ed. Code § 45113 (no more than one year)• Duration provided by Board Policy or CBA
Certificated Employees: Probationary Period• Ed. Code § 44929.21: Certificated Employee
attains permanent status as a matter of law unless served with a Notice of Non-reelection before March 15 his/her second consecutive probationary year
Tenure & Seniority• Under Ed. Code § 44911, service under
emergency permit does not accrue tenure (see below re seniority)
• Fleice v. Chular case: Two-year probationary period a matter of law, cannot be changed by mutual agreement
• Griego case: Approved leave of absence does not constitute break in service
Certificated Temporary Employees: Traps for the Unwary!Certificated Temporary Employees: Traps for the Unwary!
Any defect in temporary classification will automatically cause default to probationary status
Kavanaugh Requirements: Sign temporary contract before first day of service; Finite dates of employment.
Bakersfield/Vallejo Cases: Temp status depends on manner of classification, not type of credential (interns are not automatically temporary by definition)
Certificated Temporary Employees: Traps for the Unwary! Paulus & Santa Barbara Requirements:
Replace employee on leave of absence (FTE of employees on leave must exceed FTE of temps; 1 to 1 correspondence not required)
Stockton Requirements: For categorical temps, duration of employment must end with end of categorical funding
McIntyre Case: Properly classified temps will not accrue tenure from year to year
Certificated Substitute/Temporary Employees: More Traps for the Unwary!
Certificated Substitute/Temporary Employees: More Traps for the Unwary!
“Tacking”: Ed. Code §§ 44919, 44920: Year 1: Temporary employees; Year 2: Probationary Employee – Year 1
retroactively classified as probationary.
Seniority for LayoffsSeniority for Layoffs
Seniority v. Tenure: Seniority Date is Generally Fixed upon Accrual• Classified: Defined by first date of service or
aggregate number of hours served (CBA)• Certificated: Ed. Code § 44845: “First Date of Paid
Probationary Service” Beware of effect of “tacking” Golden Valley Case: Service under
emergency permit is treated as probationary service for purposes of seniority (as opposed to tenure)
Role of Seniority in Layoffs – Certificated Role of Seniority in Layoffs – Certificated “Last in, first out” in
economic/programmatic layoffs. Ed. Code § 44955(b)
District cannot lay off employee and retain junior employee in same credential/competency area
Districts can deviate from order of seniority in layoff based on “special training and experience in a specific course of study.” Ed. Code § 44956(a)(3)(A)
Notice of Layoff or Reduction in Hours: ClassifiedNotice of Layoff or Reduction in Hours: Classified
• CBA may specify greater notice requirement than Education Code
• Notice of classified layoff increased to 60 days or more. Ed. Code § 45117
• Bumping rights: Laid-off employee may bump junior employee in same classification
• Anomaly - Notice and opportunity to bargain decision and effects of potential reduction of hours required.
Rehire Rights of Laid Off Employees: ClassifiedRehire Rights of Laid Off Employees: Classified
Rehired in order of seniority • CBA may specify and/or refine rules on rehire
39-month rehire list for permanent (Ed. Code § 44956(a)(1)) • Offer position for which employee is
credentialed/qualified Employee may turn down position. CBA
may specify how many times employee can turn down offer
24-month rehire list for probationary (Ed. Code § 44957(a))
Practice Pointers: Seniority, Tenure & Layoffs
Certificated and Classified Maintain and Update Seniority Lists
• Seniority dates (include hours, if applicable, for classified)• Classifications• FTE• Probationary v. permanent
Track probationary periods• Moving window for classified• March 15 of Second Probationary Year for Certificated
LEAVES OF ABSENCE
Certificated Leaves of Absence – Sick LeaveCertificated Leaves of Absence – Sick Leave Can an employee take sick leave accrue
right away, or must they wait for accrual? • Yes, leave can be taken at any time during the
school year. Up to 10 days for full time; pro-rated for part time. Ed. Code § 44978
Does the employee have to be sick to take sick leave? • No, can be used to take care of family
members, or domestic partner. May be used for pregnancy disability.
Certificated Leaves of Absence – Differential LeaveCertificated Leaves of Absence – Differential Leave Up to 5 months leave under Ed.
Code § 44977 Cost of substitute deducted from
salary (whether or not one is hired) Does not matter whether absence
arises out of employment Runs consecutively after
exhaustion of sick leave (not concurrently)
Certificated Leaves of Absence – Differential LeaveCertificated Leaves of Absence – Differential Leave
Differential leave does not accumulate
If school year ends before five-month period is exhausted, the employee may use the balance of the leave in a subsequent school year (Ed. Code § 44977)
Certificated Leaves of Absence – Differential Leave
Certificated Leaves of Absence – Differential Leave
Can an employee take an additional five-month period of differential pay for a new illness or injury? • There is not a limit for new illness or
injury. “The employee shall not be provided more than one five-month period per illness or accident.” (Ed. Code § 44977(b)(2))
Certificated Leaves of Absence – Exhaustion of LeaveCertificated Leaves of Absence – Exhaustion of Leave
What are reemployment rights where all available leaves exhausted?• If all available leaves are exhausted, and the
employee is medically unable to return to work, the employee shall be placed on a reemployment list if not placed in another position. (Ed. Code § 44978.1)
• Permanent: 39 months; Probationary: 24 months
• When medically able, employee shall be offered position they are credentialed for and qualified to perform
Classified Leaves of Absence – Sick Leave
Classified Leaves of Absence – Sick Leave
• Full time permanent employees: 12 days. Prorated for part-time employees.
• May be used before full accrual• Probationary employee limit: 1
day/month for first six months • Sick leave may be taken any time during
year. Accrues from year to year.
(Ed. Code § 45191)
Classified Leaves of Absence – Differential Leave
Classified Leaves of Absence – Differential Leave
5-month differential leave available subject to 100 day alternative: • Full-time employees: 100 days annually • Compensation = 50% of regular salary for
differential leave days • 100 days run concurrently (not consecutively)
with sick leave. Start with 1st day of absence) • Does not accrue from year to year
(Ed. Code § 45196)
Classified Leaves of Absence – Reemployment Rights
Classified Leaves of Absence – Reemployment Rights
If employee medically unable to return to work after all leaves of absence are exhausted, then they shall be placed on 39-month reemployment list. (Ed. Code § 45195)
Question: Does the District have to “create” a job for an employee coming off 39-month reemployment list?
Classified Leaves of Absence – Reemployment Rights
Classified Leaves of Absence – Reemployment Rights
Answer: The District need not create a new job. If the employee on the 39-month rehire list is able to assume the duties of his or her position, the employee shall be reemployed in the first vacancy in the classification of his or her previous assignment. • Employee will have preference over all other
applicants, except laid off employees.
(Ed. Code § 45196)
Comparison of Certificated vs. Classified Reemployment Rights
Comparison of Certificated vs. Classified Reemployment Rights
Classified: If employee able to assume duties of their position, they will be reemployed in the first vacancy in the classification of their previous assignment. (Ed. Code § 45196)
Certificated: When employee medically able during the 24- or 39-month rehire period, he/she shall be returned to a position for which he/she is credentialed and qualified. (Ed. Code § 44978.1)
Question: Why do you think there is a difference in the language?
Other LeavesOther Leaves
FMLA/CFRA Military Leave Bereavement Leave Jury Duty / Witness Personnel Necessity Union Leave Election Leave Professional Development / Study
