During the last legislative session, lawmakers made several changes to laws that directly impact the terms and conditions of an educator’s employment with a school district. Although these changes purportedly were made with the intent of providing school districts greater flexibility in responding to budget shortfalls, the practical impact of these changes could undermine legal protections traditionally enjoyed by educators.

Furloughs

Beginning Sept. 28, 2011, school districts may implement unpaid furloughs for educators. To impose a furlough, a school district must adopt a specific furlough policy and the commissioner of education must certify that the school district will receive less state and local funding for that school year than received for the 2010-11 school year. The district must involve professional staff and employees in the development of the furlough policy, and the employees must be given an opportunity to express their opinions on the policy at a public meeting. During that meeting, the school board and administration must explain the options that were considered as alternatives to furlough, including a tax rate increase and use of available funds, and how the program will limit the number of employees who would otherwise be discharged or nonrenewed. They must also state the specific number of furlough days that will be imposed.

Assuming these requirements are met, the school district may reduce days of educator service under the contract to less than 187 days and may lower an employee’s salary in proportion to the number of days by which service is reduced. Any furlough program adopted by a school district must subject all contract personnel to the same number of furlough days, and the reduction in annual salary must be equally distributed over the course of the educator’s contract. An educator may not use paid leave of any type while on furlough. A decision of a school board to implement a furlough is final and may not be appealed.

There are some limitations on a school district’s ability to impose furloughs. A school district may not reduce the days of service under the contract by more than six days, and an educator may not be furloughed on a district instructional day. A furlough program may not result in an increase of required teacher workdays, and when a furlough is implemented after the resignation deadline, an educator may unilaterally resign from the district without penalty.

Time spent on a furlough does not constitute a break in service for TRS purposes; however, a furlough day does not count as a day of service.

Reductions in pay

School districts may now implement widespread reduction of salaries paid to classroom teachers based on district financial conditions rather than teacher performance. A reduction in salary is considered to have occurred in any school year in which a school district has reduced classroom teachers’ salaries to an amount less than the preceding school year. To impose a reduction in salary, the school district must go through the same process of employee input and public meetings required for the implementation of a furlough. A school district must reduce the salary of all administrators and all professional employees by the same percentage that teacher salaries have been reduced.

Reductions in force (RIF)

Several changes in the law modify the due process that must be given to educators who are subject to contract termination as the result of a RIF due to a declared financial exigency. For teachers who hold continuing contracts, there is no longer a requirement that these employees be terminated in reverse order of seniority in the event of a RIF. Instead, school districts must base these decisions primarily on teacher appraisals and other criteria as determined by the board of trustees.

Teachers who hold term or continuing contracts and have been identified as subject to a proposed contract termination due to a RIF based on financial exigency are no longer entitled to request a hearing before an independent hearing examiner. Instead, those hearings will be conducted before the board of trustees in the same manner as a nonrenewal hearing. Districts with more than 5,000 students may hold these hearings or any nonrenewal hearing before an independent attorney appointed by the board of trustees.

School districts that declare a RIF due to financial exigency may now choose to amend the terms of the contract of the superintendent employed by the school district. A superintendent whose contract is amended may resign without penalty by providing reasonable notice to the board and may continue employment for that notice period under the prior contract.

Note that the changes to RIF procedures based on a financial exigency apply to terminations during the term of a contract, which are now subject to minimum standards to be provided by a rule adopted by the commissioner of education. As a result, most districts implementing a RIF during contract nonrenewal season are doing so on the basis of a program change rather than a financial exigency.

Change in deadline to notify educators of contract renewal

School districts must now notify educators of the decision to renew or not renew a contract for the next school year by no later than 10 calendar days prior to the last day of instruction. Prior to this change in the law, the deadline was 45 calendar days.

Conclusion

 

Lawmakers have given greater flexibility to school districts to implement furloughs, reduce salaries and reduce staff through a RIF in the hopes that these measures would make districts more efficient, reduce costs and ultimately allow districts to retain more staff. TCTA believes that these measures do not address the cause of the financial shortfalls currently being experienced by school districts across the state and remains committed to urging the Legislature to restore adequate funding for schools and reverse the erosions of teacher benefits approved last session.

TCTA members employed in a school district that is considering a furlough, salary cut or RIF are encouraged to contact the TCTA Legal Department for specific advice from one of our staff attorneys (888-879-8282).