DECIPHERING THE EDUCATION CODE:
TRANSLATING THE LAW INTO SOUND
PERSONNEL PRACTICES
Presenter:
John R. Yeh
Burke, Williams & Sorensen, LLP
ACSA PERSONNEL INSTITUTE
October 7, 2015
Irvine, CA
The Tale of the Tape
The Education Code v.
the Telephone Book
Today’s Objectives
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Employee Classifications
Tenure and Seniority
Reduction in Hours; Layoff
Leaves of Absence
Other 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 Classification
 Certificated Employees
 Classified Employees
Certificated Employees
 Any position “requiring certification
qualifications” (Ed. Code § 44830)
 Includes:
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Teachers
Administrators
Counselors
Nurses
Psychologists
CDC staff (Ed. Code § 8366)
Classified Employees
 Classified Employees: “Positions not
requiring certification requirements”
(Ed. Code § 45103(a))
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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/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 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:
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Certificated / Classified
Bargaining Unit / Non-Bargaining Unit
Classified: Confidential / Non-Confidential
Certificated: Administrator / Teacher
TENURE AND SENIORITY
LAYOFFS
Tenure & 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!
 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!
 “Tacking”: Ed. Code §§ 44919, 44920:
 Year 1: Temporary employees;
 Year 2: Probationary Employee – Year 1
retroactively classified as probationary.
Seniority 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
 “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: 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: 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
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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 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; prorated 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 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 Leave
 Differential leave does not
accumulate
 If school year ends before fivemonth 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
 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 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
• 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
 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
 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
 Answer: The District need not create a
new job. If the employee on the 39month 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
 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 Leaves
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FMLA/CFRA
Military Leave
Bereavement Leave
Jury Duty / Witness
Personnel Necessity
Union Leave
Election Leave
Professional Development / Study
QUESTIONS?
John R. Yeh, Esq.
[email protected]
650.327.2672