Human Resources Academy II for Community College Districts

should also identify whether the service is being eliminated, reduced, or offered in a different manner as a result of the layoff.

Education Code section 87743 prohibits the layoff of a senior faculty member, if a junior employee is retained to perform a service in the same faculty service area (“FSA”) which the senior employee is competent and minimally qualified to perform. Thus, the essential starting point for any faculty layoff is composing a complete and accurate seniority list and checking it twice. B. C OMPOSITION OF THE L IST : W HO G ETS I N AND W HO D OES N OT The touchstone for determining an employee’s layoff rights is his/her classification. All contract (probationary) and regular (permanent) employees are entitled to the procedural protections of section 87743. Additionally, as discussed more fully below, administrators who have attained either probationary or permanent status as faculty members will generally be entitled to layoff rights. Temporary and substitute employees, in contrast, are not entitled to these protections. Thus, the seniority list must include all probationary and permanent faculty. District records must be carefully reviewed to ensure that the seniority list is accurate and complete. In doing so, districts should be mindful of several issues, discussed below, including: the review of temporary employees to ensure they were properly classified and proper inclusion of administrators on the seniority list. 1. S ENIORITY VERSUS T ENURE Proper composition of the list begins with understanding the distinction between tenure and seniority; the two are separate concepts. Tenure describes an employee’s right to employment in the district. Seniority, in contrast describes the relative right of an employee to employment, relative to his or her colleagues. 2. A RE Y OUR T EMPORARY F ACULTY R EALLY T EMPORARY ? As the importance of classification to layoff rights suggests, districts are well advised to make sure that they have properly classified their academic staff. Employees who are properly categorized as temporary may be released without resort to the layoff process. However, if an employee entitled to probationary status is misclassified as a temporary employee, he or she will not appear on the seniority list, and thus will not receive a layoff notice. As a result, the employee cannot be released (because he/she is not really a temporary employee) and cannot be laid off (because he/she did not receive notice.). Moreover, the bar to laying off this employee may require the district to lay off more senior employees who are competent and minimally qualified to serve in the position held by the retained junior employee. In short: Make sure your temporary employees are properly classified.

Human Resources Academy II for Community College Districts ©2019 (c) Liebert Cassidy Whitmore 38