Now Open: A Second Window For Certificated Layoffs

Posted by Guest Author on July 05, 2012

School Budget.jpgThis guest post was authored by Alison Neufeld and Alison Carrinski

From July 2 to August 15 of this year, school districts have an unusual second opportunity to conduct certificated layoffs in order to address budget gaps.  Section 44955.5, an infrequently invoked provision of the Education Code, applies in any year when the enacted State budget provides for an increase in the net revenue limit of less than 2%. 

On June 27, 2012, Governor Jerry Brown signed the State budget.  The budget includes an increase in the cost of living adjustment of less than 2%, thereby triggering Section 44955.5.  Section 44955.5 authorizes the governing board of any school district to lay off certificated employees, including administrators, where the board determines that its total revenue limit per unit of average daily attendance for the fiscal year has not increased by at least 2 percent, and that it is therefore necessary to decrease the number of permanent employees in the district. 

The statutory period for layoffs under Section 44955.5 begins five days after enactment of the annual budget and ends on August 15 of the same year.  Thus, if a school district chooses to lay off certificated employees during this time, the process must be completed before August 15, 2012.  Section 44955.5 permits the governing board to adopt a schedule of notice and hearing.  With that exception, however, districts must comply the generally applicable layoff procedures set forth in Sections 44951 and 44955. 

If you have questions about these layoff procedures, you should consult counsel. You are welcome to contact any one of Liebert Cassidy Whitmore's offices.

Handling Layoffs After Elimination Of Redevelopment Agencies

Posted by Guest Author on January 26, 2012

iconic-collumn.jpg

This guest post was authored by Melanie L. Chaney.

Since the California Supreme Court issued its ruling at the end of last month upholding the 2011 statute (AB 1X 26) that eliminated redevelopment agencies (RDAs) throughout the State as of February 1, 2012, we have received many questions about the impact this law will have on public agencies. One hot topic is how public agencies, who are already facing financial difficulties, should deal with potential layoffs resulting from the elimination of RDAs.

While AB 1X 26 is quite lengthy, there is very little in it that addresses what an agency should do with RDA employees.  The law only eliminates RDAs; it does not serve to separate RDA employees automatically.  In today’s tough economic times, many agencies cannot afford to keep all, or even some, of the RDA employees and must now consider layoffs.  Below is a general overview for handling the layoff process. 

If layoffs are being considered, agencies need to review and comply with any procedures relating to layoffs contained in memoranda of understanding (MOUs), personnel rules and other policies. This includes compliance with any timelines associated with the layoff process.  Agencies should pay specific attention to:

  • any “no layoff” provisions in current MOUs;
  • written agency procedures establishing the manner in which employees may be selected for layoff and any exceptions to the established order of layoff;
  • provisions regarding seniority or bumping rights (general law cities may be required to “observe the seniority rule” in implementing a layoff for economic reasons [Government Code section 45100]);
  • provisions regarding rights to transfer to vacant positions; and
  • provisions regarding reemployment lists or recall from layoff, including restoration of seniority and benefits.

In addition, an agency that does not already have a comprehensive layoff provision in its MOU may have to meet and confer with employee organizations regarding the impacts of any layoffs. Agencies should also think about how news about the layoffs should be communicated to employees. 

Absent specificity in an agency's layoff policy, we recommend the following process for initiating layoffs.

  • Consider giving a courtesy notice to the affected labor representatives that a layoff resolution is coming forward for approval. 
  • Have the governing body pass the necessary resolution approving the layoff plan with its anticipated effective date.  If the agency does not already have a comprehensive layoff provision in its contract, the resolution should specify that implementation of the layoff plan is subject to meet and confer to the extent required by law.
  • Give formal notice to the affected labor representatives. If there isn't already a comprehensive layoff provision in the MOU, give reasonable advance notice before the implementation of the layoffs so that the applicable exclusive representative(s) can request bargaining over any impacts of the decision to lay off.  Potential impacts may include such issues as timing and order of layoffs, displacement rights, reemployment rights, severance pay, and continuance of health insurance benefits. 
  • Send individual notices to the affected employees in accordance with the agency’s layoff policy. 
  • Meet and confer over impacts prior to effective date, if requested by exclusive representative(s).  Although the duty to negotiate generally requires employers to continue negotiations until agreement or impasse is reached, under these circumstances employers may be able to implement portions of the layoff (while continuing negotiations on other aspects) before the process is completed.  Contact your legal counsel for further guidance on this subject. 

There are many more issues raised by the law that are too complicated to address here. For example, in many agencies, RDA employees were considered city or county employees, so there may be obligations on the city or county regardless of whether it chooses to become a successor agency to the RDA.  LCW plans to provide a more comprehensive analysis of the effects of AB 1X 26 in a separate article.  In the meantime, if you have questions, please contact our Los Angeles, San Francisco, Fresno, or San Diego office. 

California Supreme Court Upholds Law Eliminating Redevelopment Agencies

Posted by Elizabeth Arce on December 30, 2011

MP900305711_72dpi.jpgThe California Supreme Court issued a ruling upholding a law that eliminated redevelopment agencies throughout the State.  This closely watched lawsuit stemmed from two measures passed by the Legislature last summer to help close California’s budget deficit.  The first measure eliminated more than 400 redevelopment agencies that were funded by property tax dollars.  The second measure allowed these agencies to continue operations but only on the condition that they share part of their property tax revenue with the State.  Although the Court upheld the law eliminating redevelopment agencies, the Court struck down the second measure. 

The Court’s ruling is undoubtedly a blow to cities and counties across the State who rely on redevelopment money to fund improvement projects within their communities.  Thus, public agencies who are already facing financial difficulty should be prepared to deal with additional challenges that may result from the Court’s ruling.  Agencies facing these issues should consider the following points. 

Agencies should be prepared to handle questions from the media and employees about the impact of the Court’s ruling on their financial condition.  For example, questions regarding possible layoff or cuts to public services may arise.  Because of increased scrutiny of public agencies in this “post-Bell” era, agencies must carefully evaluate the impact the Court’s ruling will have on them before responding to any inquiries, and carefully scrutinize how they will address these issues publicly. 

If layoffs are being considered, agencies are reminded to review any language relating to layoffs contained in memorandums of understanding, personnel rules and other policies.  Agencies should pay specific attention to layoff procedures including any timelines associated with the layoff process and the manner in which employees are selected for layoff.  In addition, the agency may have to meet and confer with the bargaining units of represented employees before initiating any layoffs.  Agencies should also think about how the layoffs will be communicated to employees. 

Finally, the loss of redevelopment funding could trigger the need to seek additional cuts through labor negotiations.  Consequently, agencies should prepare a budget summary regarding the agency’s financial condition.  In addition, agencies should familiarize themselves with language in the memorandums of understanding regarding re-opening negotiations and the timeline for conducting negotiations especially in light of the new requirements under AB 646.  

If you have questions, please contact our Los Angeles, San Francisco, Fresno, or San Diego office. 

Recent Developments Regarding Layoffs: What's New?

Posted by Jeffrey C. Freedman on February 03, 2011

Two recent developments in California law involving the layoff of public employees have raised questions:

  • First, the California Supreme Court decided that public employers are not required to negotiate with their employees’ unions about the decision to lay off employees.
  • Second, a Superior Court judge in Los Angeles approved the settlement of a lawsuit between the American Civil Liberties Union and the Los Angeles Unified School District which approved the layoff of teachers other than by strict seniority.

Supreme-Court.jpgThe Supreme Court decision simply clarified the law; it did not announce a new legal standard.  Employers have never been required to meet and confer on the question of whether employees could be laid off in a reduction of force due to economic concerns.  That has always been viewed as a pure employer prerogative.  However, it has equally been true that employers are required to meet and confer, on request, over issues relating to the impact of the layoffs.  These issues can concern the timing, the identity of those to be laid off, issues relating to their pay and benefits, severance pay and the like.  Indeed, the Public Employment Relations Board has held that these impact issues must be resolved before the layoffs can be implemented.

The LAUSD lawsuit is another matter and agencies should be cautious, and seek legal advice, before determining to layoff employees other than by strict seniority.  It must be remembered that the LAUSD case was not a trial on the merits; it was a hearing on whether a previously negotiated settlement agreement was fair and equitable.  The parties to the litigation included the ACLU, the School District, United Teachers of Los Angeles (UTLA), which represents the certificated employees of LAUSD.  UTLA sought to overturn the settlement because it allowed layoffs other than by strict seniority.  The settlement “walled off” 45 schools in low income and disadvantaged areas of the District.  The sole issue before the court was whether the settlement was fair and equitable; the Judge concluded that it was. 

Many labor agreements require the use of seniority in making decisions such as identifying those to be laid off in a reduction in force.  In the case of general law cities, the Government Code (section 45100) requires that layoffs for financial reasons be according to seniority.  There is no similar statutory provision applicable to counties or to special districts in general.  Agencies need to consult their rules, labor agreements and legal counsel before laying off employees.

The LAUSD case involved very unique facts.  The District needed to implement layoffs for cost cutting purposes and the ACLU argued that the use of strict seniority would negatively and detrimentally impact lower income and otherwise disadvantaged school children.  The parties reached a settlement which protected the school sites in question.  The Union intervened in an effort to protect the strict seniority principle and unsuccessfully attempted to overturn the settlement.  An appeal by UTLA is likely.

Superior Court Approves LAUSD Settlement Protecting Low-Seniority Teachers At 45 Struggling Schools

Posted by Guest Author on February 01, 2011

This guest post was authored by Mary Dowell and Meredith Karasch 

Students-in-Classroom.jpgThe Los Angeles Superior Court recently approved a class action settlement that allows LAUSD, in a layoff, to skip teachers at 45 schools in order to prevent constitutional violations in the right of students to be provided with a minimum level of education.  This case has received a great deal of attention for its effect of limiting seniority based layoffs in LAUSD.  The teacher’s union, UTLA, fought this settlement vigorously to protect teachers’ seniority rights in a layoff, excluding all other factors.

The suit began when students sued to enjoin teacher layoffs at schools in Watts, Boyle Heights and Pico-Union, alleging the seniority based layoffs violated their right to a minimum level of education the California Constitution guarantees.  These schools were hard to staff and undergoing reform efforts, and thus teachers were energetic and new.  The layoffs eliminated these teachers who had low seniority but were working to reform the schools.  Vacancies created by layoffs caused instability because the teachers on the reemployment lists did not want to work at these schools and many classes were staffed by short and long term substitutes. 

The parties negotiated a settlement, allowing LAUSD to skip all teachers at 45 “Targeted Schools,”  chosen based on low performance, high teacher turnover, and the growth in test scores over time, indicating reform efforts.  UTLA (who LAUSD brought in as a defendant) opposed the settlement because it violated seniority rights.  The judge determined the settlement was fair and legal.

The settlement is historic for several reasons.  First it allows skipping based on a school, rather than by teacher as is normally done.  Additionally, the settlement is based on a provision in the education code allowing skipping “for purposes of maintaining or achieving compliance with the constitutional requirements related to the equal protection of the laws.”  However, no case has defined the right a minimum level of education, nor has any court interpreted this provision to apply to the rights of students as opposed to teachers.  The judge found that the law’s requirement that layoffs occur on a strict seniority basis includes the principle that layoffs cannot violate students’ constitutional right to an education. 

Although the case ended with a settlement, large urban school districts which have schools with qualities similar to the “Targeted Schools,” may be able to use the judge’s findings to skip teachers at under-performing schools with high teacher turnover.  It is not clear whether this theory will extend beyond the K-12 school context, but if agencies believe a seniority based layoff will impact constitutional rights of third parties, they should consult counsel.  Liebert Cassidy Whitmore attorneys are available to advise any clients who may be faced with layoffs.