1. 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

2. The Tale of the Tape The Education Code v. the Telephone Book

3. Today’s Objectives  Employee Classifications  Tenure and Seniority  Reduction in Hours; Layoff  Leaves of Absence

4. 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

5. Employee Classification  Certificated Employees  Classified Employees

6. Certificated Employees  Any position “requiring certification qualifications” (Ed. Code § 44830)  Includes: Teachers Administrators Counselors Nurses Psychologists CDC staff (Ed. Code § 8366)

7. Classified Employees  Classified Employees: “Positions not requiring certification 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 and students (Ed. Code § 45103(b)(2), (3))

8. 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))

9. 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

10. 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)

11. 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

12. TENURE AND SENIORITY LAYOFFS

13. 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

14. 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

15. 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)

16. 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

17. 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.

18. 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)

19. 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)

20. 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.

21. 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))

22. 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

23. LEAVES OF ABSENCE

24. 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; pro- rated 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.

25. 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)

26. Certificated Leaves of Absence – Differential Leave  Differential leave does not accumulate  If school year ends before five- month period is exhausted, the employee may use the balance of the leave in a subsequent school year (Ed. Code § 44977)

27. 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))

28. 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

29. 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)

30. 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)

31. 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?

32. Classified Leaves of Absence – Reemployment Rights  Answer: The District need not create a new job. If the employee on the 39- month 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)

33. 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?

34. Other Leaves  FMLA/CFRA  Military Leave  Bereavement Leave  Jury Duty / Witness  Personnel Necessity  Union Leave  Election Leave  Professional Development / Study

35. QUESTIONS? John R. Yeh, Esq. jyeh@bwslaw.com 650.327.2672