Memo 3:

Classified Service Reductions; How to Lay Off or Reduce Hours for Classified Staff

A school employer faced with the need to reduce classified services, should proceed as follows:

General Considerations

There are a number of considerations which affect the way a school employer proceeds with classified service reductions.

A. Collective Bargaining

    1. Review your contract. If classified employees are covered by a collective bargaining agreement, the contract itself may already provide the method to be followed for service reductions.

    2. Review PERB rulings on negotiability. The decision to lay off is not negotiable. However, PERB has ruled that the effects of layoffs on the bargaining unit are negotiable. Classified layoffs are not effective until agreement is reached or impasse is exhausted. In addition, PERB will require negotiations on creation of new positions, with new hours, salaries or duties.

    3. Review role of your negotiator. Give your negotiator ample time to bargain the effects of a layoff before implementation.

B. Bumping Rights

Whether or not you have a classified bargaining contract, the law recognizes seniority and displacement ("bumping”) rights. A senior employee may be entitled to displace or “bump” a junior employee in a lower paid classification in which the senior employee has served or is in a lower paid, related job. Thus, a seemingly innocuous decision to lay off an employee at one position might set off a chain reaction, a series of displacements which has unforeseen impacts elsewhere in your organization. This emphasizes the need for early involvement of your negotiator. Bumping is more fully discussed below.

C. What is a “Layoff”?

    1. A layoff for “lack of work" results from a bona fide reduction or elimination of the service being performed by any department. The board's action on a reduction or elimination of services is self-defining. Education Code section 45117(b) provides that employees subject to layoff for lack of work shall be given at least 30 days' prior notice and informed of their displacement rights (i.e., rights to “bump” more junior employees) and their reemployment rights (preferential hiring for 39 months after layoff).

    Prior to any layoff for lack of work, the board of trustees must act to reduce or eliminate services performed in classified departments. Board minutes should recite the specific classified positions to be abolished or reduced. Attached is a proposed form for use in notifying affected employees. This form also must be adapted depending upon the bumping rights of the affected employees.

    2. A layoff for "lack of funds” is permitted in the event of an actual and existing financial inability to pay classified salaries. [Education Code section 45117(c).] Such layoffs, or others for unforeseen emergency reasons, rarely occur. In appropriate cases, they can be ordered without prior notice to the employees. This is the case, for example, when a categorically funded program through Employer's Training Resource is terminated by the funding agency with less than 30 days' notice.

    3. Employees in specially funded programs which will expire at the end of the fiscal year must be given written notice on or before May 29 informing them of their impending layoff and reemployment rights. Where the termination date of the specially funded program is other than June 30, 30 days' prior written notice is required before layoff. It may be argued that specially funded employees who are not notified of termination by May 29 are entitled to be employed for 30 days in September.

    4. Districts should take action prior to May 30 to advise classified employees in specially funded programs (such as aides in categorically funded projects) that their services will terminate at the end of the fiscal year. A draft notice to accomplish this purpose is attached for your consideration. Sending such notices should be approved in advance by the board of trustees. There is no special method required for service of these notices; documented personal service is advised. Please note that the form should be adapted depending upon whether it is served on an employee who, as a result of the elimination of his position, may bump a more junior employee or whether the employee whose job is eliminated is to be dismissed entirely. We recommend that you require employees with bumping rights to indicate whether they will exercise those rights within a short but reasonable period of time (seven to ten days should be sufficient).

D. Can a School Employer Relabel the Layoff as a “Reduction in Hours" to Streamline the Process of Reducing Services?

PERB rulings make sure that school employers with collective bargaining cannot use such a shortcut (if it ever existed at all). Hours are a mandatory subject of bargaining. [Government Code section 3543.2(a).] Unilateral reductions in hours cannot be accomplished by a combined layoff and reemployment at lesser hours in newly-created positions.

For school employers not subject to collective bargaining restrictions, the reduction in hours approach is indistinguishable from the layoff process. There is no particular need to characterize the service reduction as a reduction in hours.

E. How Does “Bumpinq” Work?

Classified seniority is determined in each job classification by total hours in paid status in that classification. The only statutory provision concerning seniority is this: When a job is being eliminated in a classification, the employee with the least total seniority (total paid hours) in that classification and higher classifications is the one who will be laid off from the position he now holds. (Education Code section 45308.)

Although the Education Code does not define "higher classification,” the most commonly accepted practice is to include only higher related classes in the same general job family, such as Custodian I, II and III or Clerk Typist and Secretary I and II.

Once a person is laid off from his current position, he may be entitled to displace (“bump”) an employee in a lower, related job. The Education Code does not specify these displacement rights. The most commonly accepted procedure is to permit a laid off employee to bump the most junior person in the next lower job classification in which the laid off employee has actually served in the district previously, even if the time served in that position is less than the time served by the person who is being bumped.

In the absence of other past practices or negotiated bumping procedures, we recommend that you apply those described above. Seniority and bumping rights should also be applied in cases of reduced hours.

Unless otherwise agreed or determined by past practice, an employee who is laid off from a position with higher hours (such as a six-hour aide) should be permitted to bump the most junior employee in the same job with the highest number of lesser hours. For example, the laid-off six-hour aide would bump into a five-hour aide position rather than a four-hour job. However, if the most junior five-hour aide has more total time as an aide than the six-hour aide has as an aide, the six-hour aide should bump into a lower position.

We emphasize that the negotiations process can be used to the mutual advantage of all parties to clarify the bumping rights of employees.

F. Forms; Letters to Employees

    1. Board Resolution. Because of the significant number of variables, we are reluctant to distribute a general form for a governing board resolution. Often, the resolution cannot even be drafted until the bumping and negotiations issues are put to rest. We accordingly recommend that the District contact us for a specially-designed resolution.

    2. Form letters. We enclose two form letters (categorical; non-categorical) to illustrate what a school employer sends out in a typical layoff situation. Please do not attempt to use these letters before talking to Schools Legal Service and your negotiator.

      a. Non-Categorical programs. This letter covers lack of work or lack of funds situations.

      b. Categorical programs. This letter, usually issued as a precaution each Spring, tells an employee who works in a categorical program that funding might not be available for the next school year. Layoff terms and reemployment rights are listed.

Conclusion

Classified service reductions will continue to require significant administrative lead time and processing prior to implementation. Contact Schools Legal Service as soon as the subject arises.



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