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 2015-16 2016-17 2017-18 by 15% (current • 15% of 45.0 FTE = year) 6.75 FTE ADA (first 6 1,000 900 850 months) • Current year = FTE 40.0 Full time 45.0 42.5 40.0 equivalents • Natural attrition of (FTEs) certificated employees % Decline 15% 10% of 5.0 FTE in ADA to • May reduce an Current additional 1.75 FTE Year
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.
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