With the uncertainty surrounding the budget shortfall for this year and next, school districts are likely to issue huge numbers of layoff notices to certificated employees by the March 15 deadline "just in case." Districts often grossly overestimate or deliberately inflate the need for reductions-in-force (RIFs), causing unnecessary chaos. Following are some typical questions you might have if you receive a notice.
What are my rights?
If you are served with a layoff notice, you have a right to request a hearing. Your request must be in writing and delivered by the specified date (usually within seven days). If you do not request a hearing on time, you waive your right to a hearing and you will not be able to contest the layoff.
What can CTA do to help?
If you receive a layoff notice, you should contact your CTA representative immediately to arrange to request a hearing and obtain legal representation. Your representative will give you specific information and forms to complete. After you request a hearing, the district will serve you with a written accusation and you must file a notice of defense (usually within five days). CTA and your local association will provide representation to every member who receives a layoff notice. Because districts often serve many employees with RIF notices, CTA provides representation to all members in the district as a group.
What will happen next?
A formal hearing will be held before an administrative law judge (ALJ) from the Office of Administrative Hearings. The ALJ will prepare a proposed decision (a recommendation to the governing board) containing findings of fact, a determination as to whether the district has proven the legal grounds for the layoff, and a list of the employees to be laid off. It must be submitted to the governing board and affected employees on or before May 7.
How does seniority come into play?
The law provides that no permanent employee may be terminated while any probationary employee, or any other employee with less seniority, is retained to render a service which the permanent employee is certificated and competent to render. Usually the seniority date will be the first day of work as a probationary employee. Employees who first rendered paid probationary service to the district on the same date will be ranked by tie-breaking criteria determined by the governing board. It cannot be a lottery. The criteria must be published no later than five days before the layoff hearing.
Depending on seniority and credentials held, an employee may have a right to bump another employee who has less seniority. Some districts notify employees for layoff after constructing a bumping trail. Other districts give notice to every teacher within the scope of the RIF and ask the ALJ to decide who is permitted to bump and who will ultimately be laid off after bumping rights have been exercised.
Are there any exceptions to seniority?
There are some exceptions to the legal requirement to make layoffs in order of seniority. If a district demonstrates that it has a specific need for employees to teach a specific course or course of study, or to provide services authorized by a pupil personnel services or health credential, a certificated employee who has the necessary training and experience may be retained and others having more seniority may be laid off.
However, CTA's position is that these exceptions should be narrowly construed and that districts may retain a teacher having specialized certification and lay off a more senior employee only if the retained junior individual currently teaches in an assignment that requires such certification or will be teaching in such an assignment in the next school year.
While I'm waiting to be rehired, can I substitute?
During the 39-month period, the district must offer substitute teaching service to laid-off employees in order of seniority.
What rehire rights would I have?
Permanent employees have preferred eligibility for re-employment for a period of 39 months from the date of layoff if the number of district employees is increased or a discontinued service is re-established, with no requirements that were not imposed upon other employees who continued in service. No probationary or other employee with less seniority may be employed to render a service which a permanent employee is certificated and competent to render.
What about probationary teachers?
Probationary employees receive preferred eligibility for re-employment for 24 months, subject to the prior rights of all permanent employees, if the number of employees is increased or the discontinued service is re-established. There can be no requirements that were not imposed upon other employees who continued in service.
Can I return to my old school?
You have a right to re-employment in a position that you are credentialed and qualified to teach but not necessarily in the same grade, school or subject. You have a right to reappointment to the same type of position you had before the RIF occurred. For example, a part-time employee has a right to be reappointed only to a part-time position.
What if I don't like the first job offer?
You may waive your right to re-employment, but not for more than one school year unless the governing board extends this right. If you waive re-employment, you still retain your right to receive subsequent offers of employment.
What about my retirement credit?
If you are re-employed after being laid off, you do not suffer a break in service or loss of seniority because of the layoff. Your credit for previous service under any retirement system is not affected, but the period of absence does not count as a part of the service required for retirement. Within one year of your return to service, you may continue or make up, with interest, contributions to any retirement system for the period of your absence; the state and the district, however, are not required to match such contributions.
What if I decide to retire?
If you become disabled or reach retirement age before your return to service, you will receive all benefits to which you would have been entitled had the layoff occurred at the time of your termination from service, plus any benefits you may have qualified for thereafter, as though you were still employed.
What happens to my medical coverage?
If you are laid off, you have a right to continue your district-provided medical insurance coverage at your own expense. A federal law, the Consolidated Omnibus Budget Reconciliation Act (COBRA), requires your employer to offer you - and your spouse and dependents - continuing insurance coverage if you lose your job for any reason other than gross misconduct. Districts are required to notify you that coverage is available for up to 18 months following your termination from employment and make coverage available to you at the group premium rate, but they are not required to pay for coverage. In addition to COBRA benefits, some local associations may bargain contract provisions relating to continuation of medical benefits for laid-off employees. Contact your local association representative for information.
Can I collect unemployment?
Yes. Your eligibility should commence during the summer.
Beverly Tucker
Tucker is CTA's Chief Counsel and Associate Executive Director.
