Human Resources Academy II for Community College Districts

D. I MPLEMENTATION OF THE L IST

1. M INIMUM Q UALIFICATIONS AND C OMPETENCY The Education Code prohibits termination of a tenured employee while an employee with less seniority is retained to provide a service in a faculty service area (“FSA”) in which the tenured employee possesses the “minimum qualifications” and is “competent” to serve. A “faculty service area” is “a service or instructional service area or group of related services or instructional subject areas performed by the faculty and established by a community college district.” 71 Minimum qualifications are established by the Board of Governors, and defined within the context of an FSA. 72 “Competency” criteria are negotiable in community colleges. 73 Competency in the context of a layoff is not the same as competency in an employee’s present performance of his or her duties. Rather, competency in the layoff contexts looks to such things as recency of experience, nature or breadth of experience, level of experience and education, and special skills required by the position. Additionally, when laying off an employee who is minimally qualified to perform services being provided by a junior employee, the burden of proof is on the district to establish that the senior employee is not competent to perform those services. 74 2. “S KIPPING ” E MPLOYEES “Skipping” occurs when a district retains a more junior employee due to special skills or competencies necessary to the position which are lacking in a more senior employee. Skipping is a district right, not an employee right, and an employee may not assert a right to be skipped. A district’s skip criteria must relate “to special qualifications for a vacant position, rather than relating to the on-the-job performance of the laid-off employee.” 75 Therefore, a district may “skip” a junior employee in a layoff who has special skills for which the district can demonstrate a specific need. 76 However, districts must remember that in implementing skips, prior satisfactory performance is not a relevant criteria. If a more senior employee is competent, he or she is entitled to the position even if the district believes that the more junior employee is better qualified for the position. 3. E MPLOYEE “B UMPING ” R IGHTS “Bumping” occurs when an employee affected by layoff displaces, or “bumps,” a junior employee for the more junior position. Bumping is an employee right, but may only be exercised by the employee who has both the minimum qualifications and the competency required to serve in the junior position. 77 Districts can and should calculate “bumps” when issuing its layoff notices, to avoid bumping challenges at hearing. “Partial bumping” occurs when a senior employee bumps only part of the full-time equivalent (FTE) of a more junior employee. Unless a district can demonstrate that significant scheduling or administrative problems will result, a partial bump will likely be required. 78

Human Resources Academy II for Community College Districts ©2019 (c) Liebert Cassidy Whitmore 41