Name that Section - Frequently Used Education Code and Title 5 Sections for Community College Districts

In a non-merit system, work may be contracted out if the district complies with the requirements of the Education Code.

In merit systems, Education Code section 88076 imposes an obligation on merit-system school districts to employ classified employees that “cannot be avoided by the use of contracts.” 86 Section 88076 contains additional limiting language applicable only to merit-system districts: “No person whose contribution consists solely in the rendition of individual personal services and whose employment does not come within the scope of the exceptions listed above shall be employed outside the classified service.” In California School Employees Assn. v. Del Norte County Unified School District , 87 the district contracted out to ServiceMaster to provide regular supervision of employees along with consultation, research, and development work and services regarding maintenance and custodial operations at the schools within the district. Since the work could have been performed by persons obtained through the ordinary district hiring channels, the contract was held to be invalid. The court also noted that the Education Code governing classification of school district employees and classification of employees in school districts that have adopted merit systems mandate that all persons, including supervisors, who are regularly employed by school districts and who are not specifically exempt by statute, be part of the classified service. 2. U NIONS AND C OLLECTIVE B ARGAINING A GREEMENTS Not only must the district pay careful attention to the Education Code provisions regarding personal services contracts, but it must also follow its own collective bargaining agreement. Always remember to also look at the collective bargaining agreement rules regarding hiring. The collective bargaining agreement may contain rules that are more restrictive than the Education Code. Further, the decision to subcontract work by a district raises collective bargaining issues. If the purpose of the decision is to reduce labor costs (including any contract under Education Code section 88003.1, subdivision (a)), it must be negotiated. In contrast, if the subcontracting is for purposes other than cost saving (i.e. those purposes set forth in Section 88003.1, subdivision (b)), the district may not need to bargain the decision to subcontract. The duty to bargain in this context depends largely on whether the subcontracting will result in the removal of existing work for unit employees. Where the subcontract will result in removal of existing work, the decision to subcontract must be negotiated. Note, however, that the purposes set forth in Section 88003.1, subdivision (b) describe situations that are largely premised on a district’s lack of internal resources to perform the work. Thus, subcontracting in this context should have less impact on existing unit work than a subcontract for cost-saving purposes. This explains why the decision to subcontract for cost-savings purposes under 88003.1, subdivision (a) is always subject to negotiations. Additionally, whether or not the decision to subcontract is negotiable, the effects of subcontracting on unit employees must still be negotiated. 88

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts ©2018 (c) Liebert Cassidy Whitmore 34