Saturday, October 11, 2008

The DOE Layoff Dilemma


There are rumors going around the education world that New York City may be setting up a layoff list and that layoffs may occur as soon as the Spring semester. It is obvious that the first to be laid off would be school support staff. Teacher's aides, secretaries, school safety, etc. However, for laying off teachers, DOE's dilemma is how to protect the newbie teachers that Tweed has gone out of their way to hire. Unfortunately, for Kleinberg New York State Civil Service & Education Law is quite specific how tenured teachers are to be laid off and there is no way for the DOE to protect the newbies, no matter what they do. To the best of my knowledge the layoff procedure for teachers are as follows:

First, all nontenured teachers are all laid off. No exceptions are allowed.

Second, the most recently tenured teachers are next to be laid off. For example three year tenured teachers are first, then four year tenured teachers, etc, etc. Therefore, the longer the teacher is in the New York City Public School System, the more secure their job is.

It is my understanding that the teacher layoff procedure is not by subject license but by total seniority. Therefore, there could be an over abundance of gym teachers and a shortage of chemistry teachers once the layoffs are finished. That may be unfortunate but that is the way it works. Layoffs by total seniority in the New York City Public Schools.

As you can imagine, this will not go over well with Tweed as they want cheap, newbie teachers who don't question authority over experienced, highly-paid teachers who question idiotic administrative dictates. Therefore, what can we expect from Tweed before they must follow the layoff procedure.

ATRs & Reassigned Teachers: Look for Tweed to start a media blitz complaining how they waste money on ATRs while they must cut the budget. It matters little that the DOE caused this problem and can simply solve it by placing ATRs in the many vacancies that occur during the school year. Spearheading this media blitz will be the Daily News and New York Post with editorials and articles showing the cost of ATRs. As for the reassigned teachers, you can bet that the DOE will propose yet again to put them on unpaid suspension without health benefits. This of course will be rejected by the union as it implies that the accused teacher is presumed guilty and this is not only unfair to the teacher but is un-American and anti-democratic.

Shortage Areas: The DOE will whine about the lack of Math, Science, and Special Education teachers if they follow the layoff procedures. That is just too bad, if the DOE had treated their experienced teachers better, maybe there wouldn't be a shortage of these teachers in the first place.

Union Self-Interest: Klienberg will yell loud and long how the union is unwilling to share the pain by allowing Tweed to get rid of experienced teachers by eliminating tenure, supporting a vastly inferior Tier V pension, and pay more for our health benefits. Of course the same cannot be said at Tweed where the head count and payroll just keeps on increasing.

I can only hope that the Wall Street panic eases and layoffs are not necessary. However, if they are it should be very interesting how Tweed handles it as they are forced to layoff the newbie teachers they spent their time and effort to recruit on their "education on the cheap" policy and "children last" program.

10 comments:

JUSTICE not "just us" said...

We sure live in interesting times!

Anonymous said...

The Education Law rather than the Civil Service Law controls with respect to the layoff of teachers. the following item form New York Public Personnel Law http://publicpersonnellaw.blogspot.com may be helpful.

Layoff rights

Bojarczuk v Mills, NYS Ct. of Appeals, Decision 98 NY2d 663


Joseph T. Bojarczuk was excessed when the Utica City School District abolished his position when the Oneida-Herkimer-Madison Board of Cooperative Educational Services (BOCES) took over its Alternative Educational Program. As Bojarczuk was “transferred to BOCES” with his position, Utica did not include him on its “preferred list” for reemployment with the District should a suitable vacancy occur while his name was on the list.


According to Utica, Bojarczuk "was afforded seniority rights under section 3014-a," and he had received all the rights to which he was entitled in connection with the layoff. The Commissioner of Education sustained Utica’s actions.


The Court of Appeals, however, disagreed, noting that Education Law Section 3014-a(4) provides that “[t]his section shall in no way be construed to limit the rights of any of such employees set forth in this section granted by any other provision of law.” Accordingly, ruled the court, the fact that Bojarczuk had been provided with Section 3014-a seniority rights did not preclude his having “additional recall rights” in the District under Sections 2510(3) and 3013(3) of the Education Law.


The decision states that:



Specifically, a teacher whose position has been abolished during a BOCES takeover of a school district program has the right to be placed on the school district's preferred eligibility list for employment for seven years in accordance with sections 2510(3) and 3013(3), provided the teacher otherwise qualifies for the statutes’ benefits.


As the lower courts had not determined whether or not Bojarczuk qualified for placement on the Utica School District preferred list, the case was remanded back to Supreme Court for such a determination.


The basic principle expressed by this decision:



If a teacher is excessed and his or her name is placed on a preferred list upon the abolishment of his or her teaching position, he or she is entitled, subject to seniority considerations, to be appointed to the next available vacancy in the school district in the tenure area in which he or she is certified the district decides to fill, unless he or she is found unqualified for that position by the District. The fact that the teacher may obtain employment in another jurisdiction does not truncate his or her rights to reinstatement from the preferred list by the school district.


Some key considerations concerning preferred lists:



1. A preferred list comes into being when an individual having tenure or permanent status in the title is excessed as the result of the abolishment of a position.


2. Unless otherwise disqualified, an individual's name is continued on the preferred list until (a) he or she is reinstated from the list to the same or a similar position or (b) his or her eligibility for reinstatement from the list expires. Depending of the controlling statute providing for the establishment of the preferred list, an individual’s name may on a preferred list from two years, i.e., a “special military list” [Military Law Section 243.7] to seven years under the Education Law.


3. If additional positions are abolished on a later date, the names of the more recently excessed individuals would be placed on the same preferred list on the basis of seniority as among themselves. In other words, an individual who is first on an existing preferred list would be displaced to a lower rank on the list if the names of an individual having greater employment seniority are placed on the same preferred list at a later date.


4. Preferred lists do not "expire" but continue in existence as long as there is at least one eligible individual qualified for appointment from the list.


To illustrate this last point, assume that Bojarczuk is never reinstated from the preferred list. On the day before the last day of the seventh year from date when Bojarczuk's name was placed on the preferred list another layoff takes place and the name of the individual excessed is placed on the preferred list.


For one day both Bojarczuk name and this second individual's name are on the preferred list, in order of relative seniority as among themselves. If neither is reinstated from the preferred list on the following day, the preferred list continues in existence but thereafter would include only the name of the second individual. The preferred list then continues in existence as long as the second individual continues to be eligible for reinstatement from the preferred list.


Reinstatement from a preferred list, however, may raise other concerns. For example, nepotism. Section 3016 of the Education Law deals with the issue of the employment of a relative by blood or marriage of a member of its school board as a teacher by the district. In essence, it requires that any such appointment must be approved by a two-thirds vote of the board.


Does Section 3016 apply in situations involving the reinstatement of a relative of a school board member as teacher from a preferred list? Barbara Gmelch thought it did and asked the Commissioner of Education to remove a school board member from his position because the board member did not advise the board that his daughter was among a number of teachers to be reinstated from a preferred list that resulted from the lay off of a number of teachers and that a two-thirds vote would be required with respect to her employment

The Commissioner dismissed Gmelch's appeal, agreeing with the school board Section 2510 mandates the reinstatement of a teacher from a preferred and thus it was required to reinstate the relative of a board member regardless of his or her relationship to the member.


In this instance the Commissioner ruled that reinstating the board member's daughter "was required by law and not within its discretion to decline" [Commissioner of Education Decision #12794].



--------------------------------------------------------------------------------
The record indicates that the teacher was employed by the district prior to the election of her father to the board.

ed notes online said...

Supposedly the contract takes precedence over tenure laws. The UF contract already has some points that are weaker than the law. Now if the union makes a deal that can override the law. Why would they you might ask? But why did they give up seniority rights in the first place when they didn't have to? Or the recent ageement to collaborate on rating teachers based on test scores?

Chaz said...

Norm:

I hope you are wrong on the tenure issue. It is my understanding that the UFT/DOE cannot violate State Education Law on the layoff procedures.

If they can, we are in big trouble.

Anonymous said...

Regarding ed notes online's comment, again an item from New York Public Personnel Law - http://publicpersonnellaw.blogspot.com - may helpful. It addresses, in part, the impact of the terms of a collective bargaining agreement with respect to determining seniority for the purposes of layoff. In a nutshell, the court ruled that the collective bargaining agreement cannot trumph the statute insofar as an individual's layoff rights are concerned.
Although the issue before the court involved determining seniority for layoff purposes under the Civil Service Law, presumably the same standard would be applied by the courts with respect to seniority for layoff under the Education Law.

-------------

Layoff considerations
Civil Service Law Sections 80 and 81-A; Education Law Sections 2510; 3013

The financial difficulties faced by the State and its political subdivisions has generated concern that public employers may have to abolish jobs resulting in layoffs.

Both the Civil Service Law and the Education Law contain provisions dealing with layoff. Essentially, employees are to be laid off in the inverse order of their permanent appointment. Errors in making determinations concerning “seniority” for the purposes of layoff are costly as the redress in such cases is the payment of back salary and benefits to the individual unlawfully laid off from his or her position.

For example, with respect to the State as an employer, in the classified service the date of the individual’s “original appointment” to a position on a permanent basis controls, regardless of the fact that the individual was originally appointed a different the position from which he or she is laid off is in the competitive class [see CSL Section 80] or the noncompetitive class [see CSL Section 81].

In contrast, the Education Law provides that in the event “a board of education abolishes a position the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.”

This element – seniority – cannot be diminished or impaired by the terms of collective bargaining agreement as demonstrated by City of Plattsburgh v Local 788, 108 AD2d 1045. In Plattsburgh the issue concerned the application of a Taylor Law contract provision dealing with seniority in a layoff situation.

The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date used to determine an individual's service for seniority purposes for layoff under State law, i.e., the individual's date of permanent appointment in public service.

For example, assume Employee A was provisionally appointed on January 1, and Employee B was appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1. Under the contract A would have greater seniority for layoff purposes than B. But Sections 80 and 80-a of the Civil Service Law provides that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and so, under the law, B would have greater seniority than A.

This was the problem in the Plattsburgh case. The City laid off Mousseau rather than another worker, Racine. While Mousseau, had been employed by the City for a longer period than Racine, Racine had received his permanent appointment before Mousseau was permanently appointed.

The Union grieved, contending that under the seniority provision in the collective bargaining agreement, Racine should have been laid off. The City, on the other hand, argued that Section 80 controlled and thus Mousseau, rather than Racine, had to be laid off first. Plattsburgh won an order prohibiting arbitration. The Court said that Section 80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

As the Court of Appeals said in County of Chautauqua v. Civil Service Employees Ass'n, 8 N.Y.3d 513, “Once such an informed decision as to which positions are to be [abolished] is made, Section 80 (1) obligates the employer to respect the seniority rights of its employees."

Similarly, in Szumigala v Hicksville Union Free School District, 539 NYS2d 83, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated Section 2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

Another element to consider is “continuous service.” Sections 80.2 and 80-A.2 of the Civil Service Law set out the effect, or lack thereof, of “interruptions in service” in the event of resignation followed by a reinstatement; appointment to a position in the unclassified service and other types of absences or leaves.

Among the many other factors to consider in layoff situations are the following:

The Attorney General has concluded that there must be an actual, official abolishment of a position in order to lawfully remove an employee from his or her position pursuant to these sections (1976 Opinions of the Attorney General 7).

Once it is decided which competitive class positions [and with respect to the State as an employer, positions in the noncompetitive class] in a layoff unit are to be abolished, two factors control for the purposes determining the individual or individuals to be laid off: the employee's tenure status [i.e., the permanent, contingent permanent, temporary, or provisional status of the worker] and his or her seniority.

Layoff units must be considered as well. Among the elements that complicate the determination of the specific individual or individuals to be suspended or displaced as a result of a layoff are (1) the identification of the specific layoff unit(s) for layoff purposes and (2) the employee's decision with respect to exercising any "displacement," "bumping" or "retreat" rights within that layoff unit that he or she may have. With respect to the State as an employer, layoff units are set out in the Rules of the State Civil Service Commission [see 4 NYCRR 72].

Military service may be a factor in determining seniority as well. A veteran who served in time of war may be entitled to have his or her "seniority date" adjusted for the purposes of layoff [Section 85, Civil Service Law]. Five years of service are added to an eligible disabled veteran's original date of permanent appointment; 2 years of service credit is added in the case of non-disabled veterans. Also, the spouse of a 100% disabled veteran may be eligible for five years of "additional" service credit in layoff situations if he or she meets the requirements set out in Section 85.7 of the Civil Service Law.

A blind employee is entitled to absolute preference in retention in cases of layoff.

Another aspect that may prove important in some situations involves determining Sections 80 or 80-a seniority for individuals who attained permanent status with a public employer as a result of a "takeover" of a private institution or enterprise by a governmental employer pursuant to Section 45 of the Civil Service Law or a similar law. Such employees may have two seniority dates and it may be necessary to consider both when determining their retention rights in a layoff.

One is their date of seniority with respect to other public employees generally, usually determined on the basis of the date of the takeover. The second is the date of their seniority with respect to their coworkers at the private enterprise at the time of the takeover. Typically such "dual seniority" rights flow from legislation that may have been adopted in connection with the takeover.

Chaz said...

Norm:

I agree with anon on this and I don't think Randi and gang can change the layoff procedures, even if she wanted to.

17 (really 15) more years said...

I'm going to have to trust the language of the education law when it states, "This element – seniority – cannot be diminished or impaired by the terms of collective bargaining agreement". However, having said that- principals trust the ignorance of their employees- and if they are unaware of their legal rights, they will try to get away with murder.

Pissed Off said...

I'm just glad I am near retirement.

There are just too many areas for things to go wrong to leave me worry free. I feel awful for the teachers still in the system.

Anonymous said...

According to Federal Code USC 42, 1983, 1964, 1968.

A geographic difference in the law, such as the difference between NYS Education law and our deadly collective bargaining agreement (that is a contract on teachers) within the same state, cannot be constitutional unless there is a vote to that effect from the State Legislature.

To date there has never been one, and even if they were to vote on it today it will make no legal difference.

Constitutional professors are working on this matter. They are liking what they see.

Should the union and the Department of Dead from the Neck up, choose to violate state and educational law by superseding it, in some new evil collective bargaining agreement that lays off senior teachers, then the motherfuckers will have a vicious lawsuit on their hands.

By the way, Teachers4 Action is about to come out with a slew of new legal actions that will cost both the RICO members of our current nightmare, tied up in court for many years to come.

It will cost them millions in legal fees and Reichfuhrer Bloomfuck will have a hard time trying to become a third term turd.

Rot and pestulence on the UFT and the DoE and the City corporation Council, who will all pay staggering sums of money for the breaking of the law and RICO.

Rest assured, that there will also be a masive number of lawsuits against specific individuals who contributed in Nazi efficiency to destroying the careers of many fine educators.

Administrators who think that they are indemmnified by their shit employer, had better think clearly about the evil coming their way when they get their assets attached. They have no defense and they will reap what they sow.

The Systems Worse Fucking Nightmare is about to hit them in their faces. They will eat, breathe, sweat, dream and shit what they have inflicted on the unfortunates that they have victimized.

For all of you who have suffered, sit back and enjoy the pain that the enemy will suffer!

A contract cannot supersede existing state law because it is illegal and unconstitutional.

Chew on that Randi Horseface Swinegarten and ReichchancellorKlein! Not to mention the REichfuhrer Bloomfuck the little man of little ethics and moral sature. May he develop lung cancer with secondarys in his liver!

Fuck Them All, and may they die screaming!

YOUR WORST NIGHTMARE. Someone you just had to fuck with.

Chaz said...

anon:

Please don't hold back your feelings. Tell us exactly how you feel.


Without the curses, I agree with you and hope the revised Teachers4Action lawsuit succeeds this time.