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MASPACLARK HILL PLC
BARBARA A. RUGAJanuary 30, 2013
LAYOFF, RECALL & NEGOTIATIONS IN
THE ERA OF SCHOOL REFORM
HOW FREEDOM TO WORK IMPACTS
MICHIGAN PUBLIC SCHOOLS
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Union Security Provisions Three types of provisions:
A “Closed Shop” agreement requires employers to hire only persons who are union members. This clause is and has been illegal under both federal and state law.
A “Union Shop” agreement is one in which employees are required as a condition of continued employment to become members of the union and pay dues within a certain period after being hired. This is permitted under federal law for private-sector employers, and was permitted under state law until the passage of PA 348 of 2012.
An “Agency Shop” agreement is one in which employees are required as a condition of continued employment to either become union members or pay the union a service fee. Agency Shops are permitted under federal law, and were permitted for both private-sector and public-sector employers until passage of PA 349 of 2012.
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Michigan’s Freedom-To-Work Statutes
Public Act 348 of 2012 amends Michigan’s Public Employment Relations Act to add Freedom-To-Work language which covers private employers.
Public Act 349 of 2012 amends Michigan’s Employment Relations Commission statute to add Freedom-To-Work language which covers public employers.
Note that dues check-off provisions are not union security clauses, and are currently permitted by virtue of a federal district court order enjoining PA 53 of 2012, which amended PERA and made it illegal for public school employers to deduct union dues. Bailey, et al. v Callahan, 12-CV-11504 (E.D. Mich, June 11, 2012).
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What The Acts Prohibit
An individual shall not be required as a condition of obtaining or continuing employment to do any of the following:
(a) Refrain or resign from membership in, voluntary affiliation with, or voluntary financial support of a labor organization.
(b) Become or remain a member of a labor organization.
(c) Pay any dues, fees, assessments, or other charges or expenses of any kind or amount or provide anything of value to a labor organization.
(d) Pay to any charitable organization or third party an amount that is in lieu of, equivalent to, or any portion of dues, fees, assessments, or other charges or expenses required of members of or employees represented by a labor organization. 2012 PA 348 at (1)(a)-(d), and 2012 PA 349 at 10(3)(a-(d).
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The Acts Also Prohibit
An employee or other person shall not by force, intimidation, or unlawful threats compel or attempt to compel any person to do any of the following:
(a) Become or remain a member of a labor organization or otherwise affiliate with or financially support a labor organization.
(b) Refrain from engaging in employment or refrain from joining a labor organization or otherwise affiliating with or financially supporting a labor organization.
(c) Pay to any charitable organization or third party an amount that is in lieu of, equivalent to, or any portion of dues, fees, assessments, or other charges or expenses required of members of or employees represented by a labor organization. 2012 PA 348 at (9)(2)(a)-(c), 2012 PA 349 at (17)(1)(a)-(c).
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Another Prohibited Subject
Compliance with section 10(3) of PERA is a new prohibited subject.
MCL §423.215(3)(q).
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Police and Fire Exemptions Under PERA
* The prohibitions in PERA do not apply to:(i) A public police or fire department employee or any person who seeks to become employed as a public police or fire department employee as that term is defined under section 2 of 1969 PA 312, MCL 423.232.(ii) A state police trooper or sergeant who is granted rights under section 5 of article XI of the state constitution of 1963 or any individual who seeks to become employed as a state police trooper or sergeant.
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Effective Date
An agreement, contract, understanding, or practice between or involving an employer and a labor organization that violates the Freedom-To-Work law is unlawful and unenforceable as of the effective date of the acts.
The amended acts apply only to an agreement, contract, understanding, or practice that takes effect or is extended or renewed after the effective date of the 2012 amendatory act that amended this section.
The effective date of the Acts is March 28, 2013.
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Penalties
Violation of the Acts can result in: A civil fine of not more than $500. A civil action by an injured person;
For damages and an injunctive relief. Cost and reasonable attorney fees for the injured
person. These remedies are independent of and in addition
to other penalties and remedies prescribed in the acts.
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What Will Change
Employees may choose not to join the union or pay union dues.
Employees may choose to continue membership in the union or pay union dues.
Employees who are not members of the union may not be compelled to pay service fees in lieu of dues.
The employer may only deduct dues if an employee voluntarily authorizes their deduction.
There shall be no disciplinary consequences or loss of employment due to a failure to pay dues or a service fee.
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More Implications
Dues check-off provisions (voluntarily authorized) are currently enforceable and do not violate the Freedom-To-Work laws.
Absent an agreement in place before March 28, 2013, upon expiration of a current contract, or in ratifying a successor contract, employers should not permit dues/service fee check-off if an employee has withdrawn from the union and objects to paying union dues/service fee.
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Are Non-Union Employees Covered by the CBA?
All employees who are in positions covered by the collective bargaining agreement are governed by the CBA. The employer cannot change wages, hours or working
conditions for those employees who are performing bargaining unit work but are not members of the union.
The union must fairly represent employees who have not joined the union, including processing grievances.
The union cannot charge the employee a representation fee.
The employer must continue to provide benefits required by the CBA.
The employer cannot engage in separate negotiations or “direct dealing” with non-members about mandatory terms and conditions of employment.
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What Are the Union Rights of Non-Dues Paying Employees?
A union may prevent non-dues paying employees from: Holding union offices; Being on the bargaining committee; Voting for CBAs; and Voting on strikes (in the private sector).
Union by-laws in existence when Act was passed may control when a member may resign upon effective date of Act.
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If a Majority of Employees Stop Paying Dues Can the Employer Withdraw Recognition of the Union?
Under current law, an employer may unilaterally withdraw recognition of the union if the employer bases the withdrawal on the union's actual and demonstrable loss of majority support. Withdrawal of recognition cannot merely be based on the employer's “good-faith reasonable doubt” or uncertainty that the union has majority support.
Under federal law a court has upheld an NLRB ruling that the fact that a majority of employees has refused to join the union or pay union dues does not demonstrate an actual loss of majority support. See Terrell Machine Co. v. NLRB, 73 LRRM 2381 (4th Cir. 1970).
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To Extend or Not to Extend
Things to consider in answering this question: Benefit to the union:
Do the math -- multiply the dues amount by the number of members that may withdraw by the number of years’ extension; this is the financial value to the union of the extension;
Cohesiveness/authority of leadership and membership through the extension; this is the value to the local leadership of the extension.
Benefit to the employer: Importance of concessions extracted in exchange for
extension. Caution about the impact of premature extensions of
existing contracts: PA 152 prohibited subjects.
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To Extend or Not to Extend
Dilemma: Given future uncertainties, difficult to gauge the benefits of short-term concessions as trade for an extended agency shop clause as compared to the overall impact of the unions’ loss of agency shop fees across the state over time.
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Questions
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Section 1248 of the Michigan Revised
School Code
LAYOFF & RECALL
Governor Snyder,
upon signing 2011 PA 100-103.
“Making staffing decisions based on merit and performance encourages good teachers to keep doing what they are doing and helps ensure students receive the highest quality education … protect outstanding teachers who are enthusiastic about the material and able to connect with students in a way that makes them want to learn.”
Policy Goal
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Goal to retain most effective teachers. Mandated by School Code. High stakes personnel decision.
Impacts your employees’ lives and well-being. Litigation Risk.
Circuit court under section 1248. Tenure Commission albeit limited jurisdiction. EEOC claims.
Public confidence in our ability to manage new flexibility in a positive manner which actually enhances student learning.
WHY IS THIS ISSUE IMPORTANT?
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“The Case Against Quality-Blind Layoffs” tntp.org , February 2011
“A Smarter Teacher Layoff System” tntp.org , 2010
New Statute - Research-Based
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As of Feb 2011, 39% teachers worked in states where seniority was only permitted factor for layoffs.
80% of seniority-based layoffs led to better teachers leaving classrooms and worse teachers staying. Novice teachers not always the least effective.
When less effective teachers are retained and more effective laid off, students lose 2.5 -3.5 months of learning; high poverty schools affected the most Less senior teachers at high poverty schools.
More teachers laid off when lay off only on seniority.
The Research Says…
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74 -77% of teachers said additional factors should be considered
Teachers supported use of classroom management and attendance Poor classroom managers and
teachers who are absent put burden on colleagues who pick up the slack and help substitutes in absence of regular classroom teacher
Source: A Smarter Teacher Layoff System, TNTP 2010
Teachers Said…
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THE RULESAPPLICABLE ONLY TO TEACHERS
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School Code Section 1248
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Sec. 1248. (1) For teachers, all of the following apply to policies regarding personnel decisions when conducting a staffing or program reduction or any other personnel determination resulting in the elimination of a position, when conducting a recall from a staffing or program reduction or any other personnel determination resulting in the elimination of a position, or in hiring after a staffing or program reduction or any other personnel determination resulting in the elimination of a position by a school district or intermediate school district.
The board of a school district or intermediate school district shall ensure that the school district or intermediate school district adopts, implements, maintains, and complies with a policy …based on retaining effective teachers.
Section 1248 Mandates Board Policies
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The policy shall ensure that a teacher who has been rated as ineffective under the performance evaluation system under section 1249 is not given any preference that would result in that teacher being retained over a teacher who is evaluated as minimally effective, effective, or highly effective under the performance evaluation system under section 1249.
No Protection for Ineffective Teachers
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§ 38.82a. Probationary teacher rated as effective or highly effective; displacement.Sec. 2a. A probationary teacher who is rated as effective or highly effective on his or her most recent annual year-end performance evaluation under section 1249 of the revised school code, 1976 PA 451, MCL 380.1249, is not subject to being displaced by a teacher on continuing tenure solely because the other teacher has continuing tenure.
Tenure Act Also Amended
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Effectiveness shall be measured by the performance evaluation system under section 1249,
and the personnel decisions shall be made based on the following factors:
1248 Defines “Effectiveness”
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* INDIVIDUAL PERFORMANCE shall be the majority factor :
* Evidence of student growth – predominant factor* The teacher's demonstrated pedagogical skills,
* a special determination concerning the teacher's knowledge of his or her subject area
* the ability to impart that knowledge through planning, delivering rigorous content, checking for and building higher-level understanding, differentiating, and managing a classroom;
* consistent preparation to maximize instructional time.
Mandated Layoff Criteria
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The teacher's management of the classroom, manner and efficacy of disciplining pupils, rapport with parents and other teachers, and ability to withstand the strain of teaching.
The teacher's attendance and disciplinary record, if any.
Individual Performance
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* Significant, relevant accomplishments and contributions.
* This factor shall be based on whether the individual contributes to the overall performance of the school by making clear, significant, relevant contributions above the normal expectations for an individual in his or her peer group
* and having demonstrated a record of exceptional performance.
Additional Criteria
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* Relevant special training. * This factor shall be based on completion of
relevant training other than the professional development or continuing education that is required by the employer or by state law, and integration of that training into instruction in a meaningful way.
Final Statutory Criterion
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…length of service or tenure status shall not be a factor in a personnel decision described in subdivision (a) or (b).
However, if that personnel decision involves 2 or more employees and all other factors distinguishing those employees from each other are equal, then length of service or tenure status may be considered as a tiebreaker.
Tenure & Seniority
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THE TOOLSThe Michigan Legislature Provided The Tools To Ensure That The New Layoff Rules Would be Feasible for
Public School Employers.
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(k) Decisions about the development, content, standards, procedures, adoption, and implementation of the public school employer's policies regarding personnel decisions when conducting a staffing or program reduction or any other personnel determination resulting in the elimination of a position, when conducting a recall from a staffing or program reduction or any other personnel determination resulting in the elimination of a position, or in hiring after a staffing or program reduction or any other personnel determination resulting in the elimination of a position, as provided under section 1248 of the revised school code, 1976 PA 451, MCL 380.1248, any decision made by the public school employer pursuant to those policies, or the impact of those decisions on an individual employee or the bargaining unit.
PERA, section 15(3)(k).
Prohibited Subject
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(l) Decisions about the development, content, standards, procedures, adoption, and implementation of a public school employer's performance evaluation system adopted under section 1249 of the revised school code, 1976 PA 451, MCL 380.1249, or under 1937 (Ex Sess) PA 4, MCL 38.71 to 38.191, decisions concerning the content of a performance evaluation of an employee under those provisions of law, or the impact of those decisions on an individual employee or the bargaining unit.
PERA, section 15(3)(l).
Another Prohibited Subject
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…the matters described in subsection (3) are prohibited subjects of bargaining between a public school employer and a bargaining representative of its employees, and, for the purposes of this act, are within the sole authority of the public school employer to decide.
PERA, section 15(4).
Sole Authority To Act
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WHAT TO DO?Procedural ComplianceSubstantive CompliancePractical Implementation
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Adopt Board Policy Before Make Layoff & Recall Decisions.
Adopt Administrative Guidelines operationalizing substantive criteria and detailing procedures.
Develop/Use Performance Evaluation System That Complies With Tenure Act & Section 1249 of School Code & Embeds Section 1248 Criteria.
Train, Train, Train. Modify and improve all of the above with
experience and results of litigation.
Procedural Compliance
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Collect the data through your performance evaluation system.
Embed section 1248 (layoff) criteria. Use precise statutory language in your
rubrics or align rubrics with statutory language.
Substantive Compliance
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Student Growth. Composite of national, state or local assessments & other
objective criteria.
MDE Nov 2012 Report. K-1: Local, DIBELS, MI Literacy, Work sampling, NWEA.
2-5: State (4-5), local, DIBELS, Work sampling, MI Literary, NWEA.
6-8: State, Local, ACT Explore, Work sampling, NWEA.
9-12: End-of-course assessment, ACT Plan, Work sampling, other, NWEA.
Student Learning Outcomes on the horizon? MCEE website; Jennifer Hammond Blog.
Performance Evaluation System Measures Mandated Criteria
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Pedagogical Skills. Special determination concerning the teacher’s
knowledge of his or her subject area. Ability to impart subject area knowledge
through planning. Delivering rigorous content. Checking for and building higher-level
understanding. Differentiating. Consistent preparation to maximize
instructional time.
Does Your Evaluation System Rate:
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Management of the classroom. Manner and efficacy of disciplining pupils. Rapport with parents and other teachers. Ability to withstand the strains of teaching.
Attendance and discipline. Not FMLA or ADA-protected absences. Not absences due to religious observances. What about contractually approved
absences?
How Does your District Measure:
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Whether employee contributes to overall performance of the school by making: Clear, significant, relevant contributions; Above the normal expectations for
his/her peer group; & Having demonstrated a record of
exceptional performance.
Significant Relevant Accomplishments
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Completion of relevant training other than: PD or continuing education required by
district or state law; and Integration of that training into
instruction in a meaningful way. Rubric. Quantify training.
Special Relevant Training
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Identify significant accomplishments and contributions. Ask teacher/evaluator? Create your own list of what your district will
“count.” Identify relevant special training.
Not required by district or state. Ask teacher to demonstrate how integrated
into instruction in a meaningful way. Identify what your district will include.
How to Operationalize …
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Practical ImplementationEffective Teacher Evaluations
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Probationary teachers and teachers rated Minimally Effective or Ineffective.
Within IDP, describe growth needed in areas used to determine layoff and recall.
The statutory criteria are synonymous with effective instructional practice.
Individualized Development Plan
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IDP CONSULTATION REQUIREMENT
Consult with teacher about IDP content BEST PRACTICES for documenting
same. Include opportunities for improvement
within the IDP. Relevant coaching. Instructional support. Professional Development.
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OBSERVATIONS
Probationary – locally determined number. Tenure - multiple.
4 to 6 if discharge. Multiple observers. Multiple measures.
No specific duration required but …. Exception to multiple if Effective or Highly
Effective 2 consecutive years. Document observations – pedagogical skills
and classroom management.
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Review lesson plan.Curriculum standard being taught.Observe and document pupil
engagement.
Content of Observation
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Review and modify IDP if needed. Review student growth data. Be direct with teacher about needed growth
in instructional practice. Be specific and concrete about how to
demonstrate that growth. Give a specific timeline on when progress
must be demonstrated.
Mid Year Progress Report
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CHECKLIST - PROBATIONARY 2012-2013. Annual Evaluation with student growth sig.
factor. IDP. No. of observations locally determined. Final Year End Evaluation includes written
assessment of IDP goal progress. Notice of non-renewal not later than June
15 or 15 days before end of anniversary year.
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CHECKLIST- TENURE – 2012-2013
Annual Evaluation with student growth sig. factor.
IDP if rated ME or Ineffective 2011-12. No more than 180 calendar days to
demonstrate progress. Multiple Observations. MYPR; encourage mentor. Final Year End Evaluation assessing IDP
goal progress in writing.
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May limit layoff notices to affected staff. Identify excess staff, not layoff by
seniority. Consider transfers. Establish internal committee to review
recommended layoffs to ensure compliance with criteria.
Identify Personnel Reduction
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Create lists of teachers ranked by overall rating on teacher evaluation system.
Student growth + evaluation tool + attendance and discipline = majority factor of individual performance.
Significant Relevant Accomplishments. Special Training. Tenure Status. Length of Service. Create a chart where apparently equal to
determine who should be laid off. If equal, use tenure and then seniority status.
In Lieu of “Seniority Lists”
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Up to District. District may wish to reserve right to
transfer teachers who are Effective or Highly Effective who would otherwise be laid off to assignments held by Minimally Effective or Ineffective teachers.
If certified and highly qualified. Think long and hard about “bumping.”
Bumping?
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Ineffective Probationary Teachers if not exited through the non-renewal process. -Ineffective tenured teachers. -Minimally Effective probationary teachers. -Minimally Effective tenured teachers?
Caveat: only ineffective tenure teachers not protected. Litigation risk – ample opportunity to improve.
-Effective probationary teachers. -Effective tenured teachers. -Highly Effective last to go unless in unique position. By points or rating categories. Within subjects, classes, grades or programs where need to
reduce exists.
New Layoff Hierarchy?
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Coordinate date evaluations are due with when layoff decisions must be made.
When will student growth data be available?
No Tenure Act timeline, however, must still give notice of right to appeal to Tenure Commission.
Timelines
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Ineffective tenure teachers have statutory right to appeal their effectiveness rating to the superintendent twice within a three consecutive year period. Internal committee confirm compliance with
District’s performance evaluation system. Consider disparate treatment issues. Monitor for possible retaliation claims.
i.e., protected activity right before being laid off.
Appeals
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Race, color, creed, national origin, religion.
Gender, sexual harassment, pregnancy discrimination.
Age.
Disability.
Marital status, height, weight.
Genetic characteristics.
Most common concerns in a RIF: age, gender, race.
Any of the above can create exposure in other allegedly “adverse” personnel decisions.
Protected Characteristics
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Was teacher given an “ample opportunity to improve?” Look at IDP.
Was a specific timeline spelled out for demonstrating progress toward the IDP goals?
Resources provided: Professional development.
Coaching.
Instructional support.
Multiple observations.
Appeal or internal review.
Minimally Effective tenured teachers?
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Assess level of risk and risk tolerance. Assess your confidence in fidelity to your
performance evaluation system. Assess your confidence in consistency and
uniformity of measures applied. Transfers. Layoff & Recall.
Exposure/Tolerance Ratio
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Communicate and post anti-discrimination, harassment and retaliation policies and procedures.
Encourage their use. Investigate complaints promptly and
thoroughly.Remedy if appropriate to do so.
Other Preventive Measures
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Section 105 eliminated.Recall rights determined by Board
policy and guidelines.Specify recall procedures within
guidelines.
Recall Rights
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Understand scope of new flexibility. Align evaluations to layoff & recall criteria. Train, train, train. Stay on top of emerging court and agency
decisions. Modify policies and regulations as needed. Use internal review process to assess risk
before issue layoff notices.
Takeaways
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Questions
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Thank You.
Barbara A. [email protected]
(616) 608-1105
Note: This document is not intended to give legal advice. It is comprised of general information. Employers facing specific issues should seek the assistance of an attorney.
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CLARK HILL COPYRIGHT 2013
Please Do Not Re-Distribute Without
Permission. Thank you.
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