DECIPHERINGTHE EDUCATION CODE Personnel... · decipheringthe education code translatingthe law into sound personnel practices for certificated and classified employees john r. yeh

DECIPHERING THE EDUCATION CODE

TRANSLATING THE LAW INTO SOUNDPERSONNEL PRACTICES FOR CERTIFICATED

AND CLASSIFIED EMPLOYEES

DECIPHERING THE EDUCATION CODE

TRANSLATING THE LAW INTO SOUNDPERSONNEL PRACTICES FOR CERTIFICATED

AND CLASSIFIED EMPLOYEES

John R. YehBurke,Williams & Sorensen, LLP

Association of California School Administrators

Personnel Institute

Sacramento, California

October 5, 2016, 3:00 p.m.

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The Tale of the TapeThe Tale of the Tape

The Education Code

v.

The Telephone Book

2

Today’s ObjectivesToday’s Objectives

Employee Classifications

Tenure and Seniority

Reduction in Hours; Layoff

Leaves of Absence

The Ed. Code v.The Rodda Act:Bargaining Implications and Impacts

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Employee ClassificationEmployee Classification

Certificated Employees

Classified Employees

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Certificated EmployeesCertificated Employees

Any position “requiring certificationqualifications” (Ed. Code § 44830)

Includes:

◦ Teachers

◦ Administrators

◦ Counselors

◦ Nurses

◦ Psychologists

◦ CDC staff (Ed. Code § 8366)

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Classified EmployeesClassified Employees

Classified Employees:“Positions not requiringcertification 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 andstudents (Ed. Code § 45103(b)(2), (3))

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Classified: Short-Term/SubstitutesClassified: Short-Term/Substitutes

Classified Employees: Exclusions◦ Short-Term Employees: Providing services not

“needed on a continuing basis.” Boardestablishes finite end date.

◦ Substitute Employee: Replacing classifiedemployee “temporarily absent from duty” – up to60 calendar days. (Ed. Code § 45103(d)(1))

◦ Shall not extend beyond 75% of the school year.(Ed. Code § 45103(d)(2))

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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 employeeon leave of absence)

14 different variations

◦ Probationary Employee: Ed. Code § 44915 - defaultclassification

◦ Permanent Employee

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The Importance of Classification

Certificated: “The classification shall be madeat the time of employment and thereafter in themonth of July each school year.” (Ed. Code §44916)

District must provide written statement “at thetime of initial employment during eachacademic year.”

Temporary Employees: Written statement mustindicate temporary status; otherwise employeedefaults to probationary (Kavanaughrequirements)

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Bargaining Unit Composition

Classification derives from the Ed. Code

◦ “Positions requiring certificationrequirements”

◦ Other positions

Bargaining Unit Membership derives from theunit recognition clause and process

◦ “Wall to Wall”

◦ List of classifications

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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

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TENURE AND SENIORITY/LAYOFFS

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Non-Supersession Clause

Gov’t Code 3540: Rodda Act “shall not supersedeother provisions of the Education Code and the rulesand regulations of public school employers whichestablish and regulate tenure or a merit or civilservice system or which provide for other methods ofadministering employer-employee relations, so long asthe rules and regulations or other methods of thepublic school employer do not conflict with lawfulcollective agreements.”

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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 attainspermanent status as a matter of law unless servedwith a Notice of Non-Reelection before March 15 ofhis/her second consecutive probationary year

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Tenure & Seniority

◦ Under Ed. Code § 44911, service underemergency permit does not accrue tenure (seebelow re seniority)

◦ Fleice v. Chular case: Two-year probationaryperiod a matter of law; cannot be changed bymutual agreement

◦ Griego case: Approved leave of absence doesnot constitute break in service

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Sunnyvale Unified School Dist. v. Jacobs(2009) 171 Cal.App.4th 168

Arbitrator could not order reinstatementof non-reelected probationary employee

Non-reelection not subject to arbitrationor collective bargaining

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Certificated Temporary Employees:Traps for the Unwary!

Certificated Temporary Employees:Traps for the Unwary!

Any defect in temporary classification willautomatically cause default to probationarystatus

Kavanaugh Requirements: Sign temporarycontract before first day of service; finite datesof employment.

Bakersfield/Vallejo Cases: Temp status dependson manner of classification, not type ofcredential (interns are not automaticallytemporary by definition)

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Certificated Temporary Employees: Traps for theUnwary!

Paulus & Santa Barbara Requirements: Replaceemployee on leave of absence (FTE ofemployees 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 ofcategorical funding

McIntyre Case: Properly classified temps willnot accrue tenure from year to year

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Certificated Substitute/Temporary Employees: MoreTraps for the Unwary!

Certificated Substitute/Temporary Employees: MoreTraps for the Unwary!

“Tacking”: Ed. Code §§ 44919, 44920

Year 1: Temporary employees

Year 2: Probationary Employee –Year 1retroactively classified as probationary

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Seniority for LayoffsSeniority for Layoffs

Seniority v.Tenure: Seniority Date is GenerallyFixed upon Accrual◦ Classified: Defined by first date of service or aggregate

number of hours served (CBA)

◦ Certificated: Ed. Code § 44845: “First Date of PaidProbationary Service”

Beware of effect of “tacking”

GoldenValley Case: Service under emergency permit istreated as probationary service for purposes of seniority (asopposed to tenure)

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Role of Seniority in Layoffs –Certificated

Role of Seniority in Layoffs –Certificated

“Last in, first out” in economic/programmaticlayoffs. (Ed. Code § 44955(b))

District cannot lay off employee and retainjunior employee in same credential/competencyarea

Districts can deviate from order of seniority inlayoff based on “special training and experiencein a specific course of study.” (Ed. Code §44956(a)(3)(A))

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Duty to Bargain – Layoffs

Administration of the layoff processgenerally not subject to the duty tobargain

The effects of layoff, however, are subjectto the duty to bargain

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Notice of Layoff or Reduction in Hours: ClassifiedNotice of Layoff or Reduction in Hours: Classified

◦ CBA may specify greater notice requirementthan Education Code

◦ Notice of classified layoff increased to 60 daysor more. (Ed. Code § 45117)

◦ Bumping rights: Laid-off employee may bumpjunior employee in same classification.

◦ Anomaly: Notice and opportunity to bargaindecision and effects of potential reduction ofhours required.

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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 mayspecify how many times employee can turndown offer.

24-month rehire list for probationary (Ed. Code§ 44957(a))

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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

◦ Bargain Impact of Layoff

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LEAVES OF ABSENCE

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Certificated Leaves of Absence – Sick LeaveCertificated Leaves of Absence – Sick Leave

Can an employee take sick leave accrue rightaway, 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 parttime. (Ed. Code § 44978)

Does the employee have to be sick to take sickleave?◦ No, it can be used to take care of family members, or

domestic partner. May be used for pregnancydisability.

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Certificated Leaves of Absence –Differential Leave

Certificated Leaves of Absence –Differential Leave

Up to 5 months leave under Ed. Code §44977 “for illness or accident”

Cost of substitute deducted from salary(whether or not one is hired)

Does not matter whether absence arisesout of employment

Runs consecutively after exhaustion of sickleave (not concurrently)

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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 newillness or injury?

◦ Differential leave “for illness or accident”

◦ Not re-triggered for new illness or injury.“The employee shall not be provided morethan one five-month period per illness oraccident.” (Ed. Code § 44977(b)(2))

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Certificated Leaves of Absence –Differential Leave

Certificated Leaves of Absence –Differential Leave

If school year ends before the five-monthperiod is exhausted, the employee mayuse the balance of the leave in asubsequent school year.

(Ed. Code § 44977)

Differential leave does not accumulate

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Certificated Leaves of Absence – Exhaustionof Leave

Certificated Leaves of Absence – Exhaustionof Leave

What are reemployment rights where allavailable leaves exhausted?

◦ If all available leaves are exhausted, and the employeeis medically unable to return to work, the employeeshall be placed on a reemployment list if not placed inanother position. Ed. Code § 44978.1

◦ Permanent: 39 months; Probationary: 24 months

◦ When medically able, employee shall be offeredposition they are credentialed for and qualified toperform.

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Classified Leaves of Absence – Sick LeaveClassified 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 forfirst 6 months

◦ Sick leave may be taken any time during year;accrues from year to year

(Ed. Code § 45191)

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Classified Leaves of Absence – DifferentialLeave

Classified Leaves of Absence – DifferentialLeave

5 month differential leave: salary less amountactually paid to substitute◦ Used after exhaustion of all other paid leave (consecutive)

Five-month differential leave available subject to100 day alternative:◦ Full-time employees: 100 days annually◦ Compensation = 50% of regular salary for differential

leave days◦ “Exclusive” of other paid leaves: 100 days run concurrently

(not consecutively) with sick leave. (Starts with first dayof absence. )

◦ Does not accrue from year to year(Ed. Code § 45196)

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Classified Leaves of Absence –Reemployment Rights

Classified Leaves of Absence –Reemployment Rights

If employee medically unable to return to workafter all leaves of absence are exhausted, thenthey shall be placed on 39-monthreemployment list. (Ed. Code § 45195)

Question: Does the District have to “create” ajob for an employee coming off 39-monthreemployment list?

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Classified Leaves of Absence –Reemployment Rights

Classified Leaves of Absence –Reemployment Rights

Answer: The District need not create a newjob. If the employee on the 39-month rehirelist is able to assume the duties of his or herposition, the employee shall be reemployed inthe first vacancy in the classification of his or herprevious assignment.◦ Employee will have preference over all other

applicants, except laid off employees.

(Ed. Code § 45196)

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Comparison of Certificated vs. ClassifiedReemployment Rights

Comparison of Certificated vs. ClassifiedReemployment Rights

Classified: If employee able to assume duties of theirposition, they will be reemployed in the first vacancy inthe classification of their previous assignment. (Ed. Code§ 45196)

Certificated: When employee medically able during the24- or 39-month rehire period, he/she shall be returnedto a position for which he/she is credentialed and qualified.(Ed. Code § 44978.1)

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Other LeavesOther Leaves

FMLA/CFRA

Military Leave

Bereavement Leave

Jury Duty/Witness

Personnel Necessity

Union Leave

Election Leave

Professional Development/Study

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Other Slightly LessIndecipherable Statutes

Other Slightly LessIndecipherable Statutes

Labor Code

Anti-Discrimination Statutes: Fair Employment& Housing Act, Federal Civil Rights Act,Americans with Disabilities Act,AgeDiscrimination in Employment Act

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QUESTIONS?QUESTIONS?

John R.Yeh, Esq.

[email protected]

650.327.2672

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