SEAC/ACSA Bargaining Advisory # 2
March 15 layoff notices
All LEA governance teams
Ruben Ingram, SEAC Executive Director and Brett McFadden, ACSA Management Services Executive, February 29, 2008.
This advisory is the second in a series of advisories focused on impacts to collective bargaining due to the current state budget crisis. The 2008-09 fiscal year poses significant financial and operational challenges to local education agencies (LEAs). School districts and county offices will be required to maximize available options in preparation for these upcoming challenges. Regrettably, one of these options is the possible necessity to issue layoff notices to certificated and classified staff. This advisory provides background and guidance on that issue. District management teams are strongly recommended to work with their legal counsel and county offices during this process.
Update
On Saturday, February 16, Governor Schwarzenegger signed a package of current-year budget reductions. The cuts to K-12 will not result in actual revenue reductions to LEA revenue limits or current-year categorical programs (for a description of these reductions see ACSA budget advisory Mid-year Cut Package available at www.acsa.org). While this was good news to the education community, it does not mean we are "out of the woods." The state's budget situation for FY 2008-09 remains precarious, and there is possibility that another round of mid-year reductions could occur. As such, LEAs will likely face significant fiscal challenges in the upcoming budget year.
These pending challenges require that LEAs take necessary and statutorily required steps to maximize their fiscal and programmatic options in FY 2008-09. While all K-12 organizations are engaged in a statewide campaign to protect education funding, we cannot, at this time, predict what the final outcome of the FY 2008-09 budget will be. This creates a difficult situation requiring school districts and county offices to prepare for all possible contingencies within the requirements of current law. Unfortunately, one of these may include the issuance of March 15 layoff notices to certificated staff as well as the preparation of possible classified layoff notices.
While we anticipate a record-high number of preliminary layoff notices prior to March 15, we also know that not all LEAs will be taking such actions. This issuance of layoff notices will vary among school districts due to their unique political, fiscal, and programmatic characteristics. Issuing layoff notices is, and should be, a carefully considered district specific action. There is no statewide "boiler plate" mechanism for this difficult issue. Therefore, the layoff picture on March 15 will be varied and unique within your regions, as well as statewide.
Layoff procedure requirements
If your agency is issuing layoff notices, it is imperative that you follow the rules and procedures specified in state statute. In addition, your LEA board policies, collective bargaining agreements, and whether or not your LEA is a merit or non-merit system agency for classified employees will influence how your district prepares and issues layoff notices.
Certificated: Certificated layoffs are governed primarily by Education Code Section 44949 (the March 15 Notices). The statutory reasons for the layoffs are also specified, and districts should consult their legal counsels to be sure they are using the correct and applicable provisions and the order of layoffs is correct. By all means consult your legal counsel regarding the accuracy of your eligibility lists. There are many varying circumstances that make the process very complex. Mistakes in the order can cause extreme disruption and challenges that could lead to losing the desired actions.
An alternative to this statutory process is provided in Government Code Section 3543.2 which allows, upon request of either party, to meet and negotiate alternative procedures and criteria for layoff of certificated employees for lack of funds. However, if the parties cannot reach mutual agreement, then the provisions of the Education Code shall apply. This alternative is controversial, is not time-tested, and there are no court rulings to help resolve issues arising from the use of it. We believe, given the short time frame, districts would be well advised to stick to the tried and true process in the Education Code.
Classified: Classified layoffs are governed primarily by Education Code Section 45308 which provides for layoff due to lack of work or lack of funds. The order of layoff is within the classification being affected and shall be determined by length of service. The employee with the shortest time in the class, plus higher classes, shall be laid off first. Again, please be advised to fully understand the complexities of employees who have served in higher classes in order to be sure your seniority lists are correct as well as displacement procedures. Also, be sure to check your classified collective bargaining agreement and, if applicable, merit system rules, to determine whether the seniority list is based on hours in paid status, or date of hire. If not otherwise negotiated, hours in paid status is the default. Classified notices must be given a minimum of 45 days before the effective date of layoff or demotion.
Purpose of the statutes: These statutes were enacted to provide a system of fairness and equity to all employees. Performance concerns regarding individual employees should not be part of these layoff procedures. Non re-election is the appropriate process for addressing certificated probationary employee concerns. This is a difficult time for everyone, but the affected employees have the greater burden, and we must do everything possible to balance the economics of the times with the impact on people.
Things to keep in mind
For those issuing March 15 or other layoff notices we caution education leaders to be mindful of the following:
- Know your collective bargaining agreement(s) and, if applicable, merit system rules.
- Audit seniority and temporary employee lists, and make sure they are accurate.
- How management handles this situation and the perception of that handling will have either positive or negative impacts on out-year labor relations and employee morale.
- Be compassionate and
considerate of your employees during this process. Consider using a
cover letter that explains what is happening and why - don't just
use the legal wording required in the accusation letters.
Work closely with legal counsel, follow the rules, and ensure that you have legally fit documentation. - Communicate and update your boards, associations, administrators, and employees - informed site administrators will help get your message out and further clarify what is happening.
- Consult with other LEAs in your region and compare notes - but keep in mind that your collective bargaining agreement may have its own requirements and/or processes.
This advisory was developed as part of the ACSA/SEAC K-12 Collective Bargaining Alliance. For additional information and/or assistance on this or other K-12 collective bargaining matters please contact either:
ACSA SEAC
Contact: Brett McFadden Contact: Dr. Ruben Ingram
916-444-3216 ext. 3810 949-387-1869
bmcfadden@acsa.org ringram@seacal.org
Editor's note: This document was developed and reviewed with the assistance of ACSA's Human Resources Council and other experienced county office, district leaders, and K-12 consultants
