SEAC/ACSA Bargaining Advisory # 3
Bargaining Advisory: Layoff Alert for 2009
All LEA governance and management teams Interested parties
Ruben Ingram, SEAC Executive Director and Brett McFadden, ACSA Management Services Executive, December 19, 2008
Districts and county offices are once again faced with the threat of significant mid and budget year reductions. All Local Education Agencies (LEAs) must maximize available options in preparation for these fiscal challenges. Regrettably, one of the options for consideration is an overall reduction in force. In light of this situation, we have revised and updated our previous layoff advisory to ensure the most current and valuable information is available to education leaders. If there is a theme for this school year, it’s “prepare early, and prepare effectively.”
This advisory is intended to provide an overview of the process and offer best practices to LEA management teams. Given the complexity of certificated and classified layoffs, we strongly recommend that management teams work closely with their legal counsel and county offices during this process. We have posted a legal advisory developed by the education law firm Atkinson, Andelson, Loya, Ruud & Romo to our websites (www.acsa.org or www.seacal.org) for provide further information on this matter.
Update
At this point, legislative relief is, at best, uncertain. Pending fiscal challenges will require that LEAs take necessary and statutorily required steps to maximize their fiscal and programmatic options in FY 2009-10. While ACSA, SEAC, and other K-adult management organizations will continue statewide advocacy efforts to protect education funding and secure maximum program and statutory flexibility, we cannot, at this time, predict what the final product of these efforts will be. Both Republican and Democratic budget proposals reveal exposure for significant cuts, and do not, as yet, provide relief to districts and county offices from the statutory procedures for layoffs. This creates a situation requiring school districts and county offices to prepare for all possible contingencies within the requirements of current law.
Thus, we anticipate another record-setting year for the issuance of preliminary certificated layoff notices. The number of layoff notices will, like last year, vary among school districts due to their unique political, fiscal, and programmatic characteristics. We caution that the issuance of 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.
If there is a consistency between all districts and county offices, however, it is that LEA management teams must prepare now in order to accommodate the potential decision of the governing board or county superintendent to engage in a layoff procedure. Waiting until March would completely undermine the ability of districts and county offices to effectively respond to such a decision.
Layoff Procedure Requirements
Statutory law regarding certificated and classified layoffs is status quo from last year, although case law continues to be dynamic. 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 or county office prepares and issues layoff notices.
Certificated: Counsel should be consulted early and often regarding each step of the certificated layoff process. Certificated layoffs are governed primarily by Education Code sections 44949 and 44955. The statutory reasons for the layoffs are specified, and care should be taken to lay the groundwork for a layoff based on a reduction in “Particular Kinds of Services.” This means management teams should be discussing, in open and noticed meetings of the governing board or county superintendent, agency-specific budget issues, potential services to reduce (e.g. class size reduction, counseling, or other programs), and the numbers and kinds of certificated employees that would correspond to any specific reduction. All options should be on the table so that the decision makers can come to an informed decision well before the March 15th statutory deadline for service of preliminary layoff notices.
Simultaneously, management teams should be ensuring that seniority lists are verified as accurate. Mistakes in the order can cause extreme disruption and challenges that could lead to a reduced effect from the desired actions.
An alternative to the 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 districts and county offices would be well advised to stick to the tried and true process in the Education Code. In any event, as we advised last school year, the time to delve into such negotiations is not during the run-up to a certificated layoff; rather, such discussions should take place when the parties may fully and deliberately engage in the give and take process of negotiations.
Classified: Classified layoffs are governed primarily by Education Code sections 45117, 45298, and 45308 which generally provide the appropriate justifications for classified layoffs and order of reductions. Just as with certificated seniority lists, management teams must fully understand the complexities of employees who have served in higher classes in order to be sure seniority lists are correct, and employee displacement rights are fully recognized. 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. With limited exceptions, classified notices must be given a minimum of 45 days before the effective date of the action.
Case law regarding displacement or “bumping rights” of classified employees is in a certain state of flux since the issuance of the decision in Tucker v. Grossmont by a California Court of Appeal. Implications of the Tucker case should be discussed with your counsel.
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-reelection is the appropriate process for addressing performance 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:
- March 15, 2009 is a Sunday, so be prepared to issue preliminary layoff notices by Friday, March 13, 2009.
- The process and procedures take time and must be accurate—if you think you will need to issue notices, start your analysis and planning now.
- Know your collective bargaining agreement(s) and, if applicable, merit system rules.
- Audit seniority and temporary employee lists, and make sure they are accurate.
- This economic crisis will pass into memory, but your employees will always remember how they were treated. The manner in which employees were treated during this time can have lasting effects on out-year negotiations.
- 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 Anthony P. De Marco, attorney with Atkinson, Andelson, Loya, Ruud & Romo, and member of ACSA’s Education Legal Support Fund advisory committee. Additional assistance was provided by members of ACSA’s Human Resources Council and SEAC’s Management Negotiator’s Advisory Panel.
