The Economic Crisis: Furloughs, Layoffs & Demotions of Professional & Non-Professional Employees Presented by: FOX ROTHSCHILD LLP Mark W. Fitzgerald, Esquire

The Economic Crisis: The Economic Crisis: Furloughs, Layoffs & Demotions of Furloughs, Layoffs & Demotions of Professional & Non-Professional Professional & Non-Professional

EmployeesEmployees

Presented by:Presented by:

FOX ROTHSCHILD LLPFOX ROTHSCHILD LLP

Mark W. Fitzgerald, EsquireMark W. Fitzgerald, Esquire

Recent developments:Recent developments:

This past February, the This past February, the Pennsylvania House Introduced Pennsylvania House Introduced HB 855 which is intended to relax HB 855 which is intended to relax the generally stringent process in the generally stringent process in Furloughing employees for Furloughing employees for economic reasons.economic reasons.

The Bill in its current form has The Bill in its current form has been pulled. been pulled.

HB 855HB 855

Seeks to add economic furloughs Seeks to add economic furloughs to the reasons articulated in to the reasons articulated in Section 1124 of the School CodeSection 1124 of the School Code

Significantly modify the process Significantly modify the process of suspending and/or demoting of suspending and/or demoting based on seniority only.based on seniority only.

Reduce the Due Process Reduce the Due Process requirements when suspending or requirements when suspending or furloughing stafffurloughing staff

PSBA TestimonyPSBA Testimony

The position of PSBA, which is The position of PSBA, which is identical to that of PASBO on this identical to that of PASBO on this subject is available.subject is available.

The bill in its current form is not The bill in its current form is not likely. We are anticipating approval likely. We are anticipating approval of allowing District to furlough for of allowing District to furlough for economic reasons. Seniority will economic reasons. Seniority will likely be the challenge.likely be the challenge.

Status of Current Status of Current LegislationLegislation In all likelihood, the removal of the In all likelihood, the removal of the

house and senate bill at this house and senate bill at this juncture will set up a compromised juncture will set up a compromised piece of legislation where Districts piece of legislation where Districts will obtain mandate relief in the will obtain mandate relief in the form of economic furloughs but still form of economic furloughs but still be required to address seniority be required to address seniority provisions under the School Code.provisions under the School Code.

In the meantime….In the meantime….

We are confronted with the We are confronted with the current legal restrictions and an current legal restrictions and an economic/funding crisis. economic/funding crisis.

What are our options when What are our options when furloughing and/or demoting?furloughing and/or demoting?

What legal hurdles are present?What legal hurdles are present?

The Furlough and The Furlough and Demotion ProcessDemotion Process

A step by step approach to A step by step approach to ensure legal complianceensure legal compliance

The First Step: Who The First Step: Who are the Employees?are the Employees? The first step in dealing with such an The first step in dealing with such an

issue is to identify the classification of issue is to identify the classification of the employee.the employee.

If the employee is a non-professional If the employee is a non-professional employee, the next level of inquiry is employee, the next level of inquiry is whether there is anything in an whether there is anything in an applicable collective bargaining applicable collective bargaining agreement or board policy that agreement or board policy that determines the manner upon which an determines the manner upon which an employee would be furloughed and/or employee would be furloughed and/or demoted.demoted.

The First Step: Who The First Step: Who are the Employees?are the Employees? In the absence of a collective In the absence of a collective

bargaining agreement or a board bargaining agreement or a board policy, generally, a non-policy, generally, a non-professional employee’s position professional employee’s position can be eliminated simply by a can be eliminated simply by a board motion eliminating the board motion eliminating the position and establishing an position and establishing an effective date of the elimination effective date of the elimination of the position.of the position.

More ComplicationsMore Complications

If there is a unionized employee If there is a unionized employee (whether professional or non-(whether professional or non-professional) and that employee is professional) and that employee is furloughed or demoted and the furloughed or demoted and the work that that employee work that that employee performed goes to a non-performed goes to a non-bargaining unit employee or entity, bargaining unit employee or entity, subcontracting concerns arise. subcontracting concerns arise. Subcontracting is extremely Subcontracting is extremely difficult under the current state of difficult under the current state of Pennsylvania law.Pennsylvania law.

More Complications:More Complications:When Furloughing When Furloughing

Non-Professional StaffNon-Professional Staff Seniority lists for non-professional Seniority lists for non-professional

employees are notoriously employees are notoriously outdated and incomplete.outdated and incomplete.

More problematic is defining the More problematic is defining the class of employees within a non-class of employees within a non-professional bargaining unit.professional bargaining unit.

We do not want a custodian We do not want a custodian bumping an instructional aide!bumping an instructional aide!

Demotions of Demotions of Professional EmployeesProfessional Employees

Section 1151 of the School Section 1151 of the School CodeCode

Section 1151 – Section 1151 – DemotionsDemotions [T]here shall be no demotion of any [T]here shall be no demotion of any

professional employee either in salary professional employee either in salary or in type of position without the or in type of position without the consent of the employee, or, if such consent of the employee, or, if such consent is not received, then such consent is not received, then such demotion shall be subject to the right demotion shall be subject to the right to a hearing before the board of school to a hearing before the board of school directors and an appeal in the same directors and an appeal in the same manner provided in the case of the manner provided in the case of the dismissal of a professional employee.dismissal of a professional employee.

Section 1151 – Section 1151 – DemotionsDemotions Demotions are considered a Demotions are considered a

“removal from one position and an “removal from one position and an appointment to a lower position; it appointment to a lower position; it is a reduction in type of position is a reduction in type of position as compared with other as compared with other professional employees having professional employees having the same status.” the same status.” Filoon v. Middle Filoon v. Middle Bucks Area Vocational Technical Bucks Area Vocational Technical SchoolSchool, 634 A.2d 726 (1993)., 634 A.2d 726 (1993).

Power of DemotionsPower of Demotions

Demotions can be one of the Demotions can be one of the most powerful tools available with most powerful tools available with respect to professional respect to professional employees. Courts generally do employees. Courts generally do not interfere with the rationale of not interfere with the rationale of a school board in demoting a a school board in demoting a professional employee.professional employee.

Section 1151 – Section 1151 – Grounds for DemotionsGrounds for Demotions The courts have held that any The courts have held that any

rational reason is sufficient to rational reason is sufficient to support a demotion and that a support a demotion and that a demotion will be overturned only demotion will be overturned only if it is shown that the demotion if it is shown that the demotion was arbitrary or capricious.was arbitrary or capricious.

Power of DemotionsPower of Demotions

Further, demotions can be for Further, demotions can be for budgetary or financial reasons, budgetary or financial reasons, while furloughs of professional while furloughs of professional employees cannot. In other employees cannot. In other words, an economic justification words, an economic justification for demoting an employee is not for demoting an employee is not arbitrary or capricious.arbitrary or capricious.

Demotion ExamplesDemotion Examples

Principal or vice principal reassigned as Principal or vice principal reassigned as teacher.teacher.

Supervisor reassigned as teacher.Supervisor reassigned as teacher. Autonomous administrator placed under Autonomous administrator placed under

the supervision of another administrator.the supervision of another administrator. Principal of an elementary school Principal of an elementary school

reassigned to a newly created position reassigned to a newly created position “Coordinator of Elementary Programs.”“Coordinator of Elementary Programs.”

Classroom teacher to an Itinerant Title I Classroom teacher to an Itinerant Title I teacher who functioned mainly as an aide.teacher who functioned mainly as an aide.

Reasons for DemotionsReasons for DemotionsUpheld by the CourtsUpheld by the Courts School district reorganizationSchool district reorganization Enrollment declineEnrollment decline Abolition of positionAbolition of position Cost savings/budgetCost savings/budget Job performanceJob performance Refusal of employee to follow Refusal of employee to follow

directionsdirections Employee not certified Employee not certified

Section 1151 – Section 1151 – DemotionsDemotions The demotion provisions of the The demotion provisions of the

School Code are applicable to School Code are applicable to professional employees only.professional employees only.

Where a professional employee Where a professional employee performs services for the school performs services for the school district that are not professional district that are not professional in character, the employee is not in character, the employee is not protected by Section 1151 of the protected by Section 1151 of the School Code.School Code.

Demotion ProceduresDemotion Procedures

Procedural requirements of the Code must Procedural requirements of the Code must be strictly adhered to.be strictly adhered to.

Employee is entitled to a notice of demotion Employee is entitled to a notice of demotion and right to a hearing if not providing and right to a hearing if not providing consent.consent.

Section 1151 requires a hearing if the Section 1151 requires a hearing if the employee does not consent to the demotion.employee does not consent to the demotion.

Only the school board, and not the Only the school board, and not the administration, can impose a demotion, administration, can impose a demotion, either after the hearing or upon consent either after the hearing or upon consent from the employee.from the employee.

Demotion ProceduresDemotion Procedures

As the result of As the result of MifflinburgMifflinburg, professional , professional employees would likely have the right to employees would likely have the right to grieve the demotion under their grieve the demotion under their Collective Bargaining Agreement Collective Bargaining Agreement instead of a hearing before the school instead of a hearing before the school board.board.

While employees may find arbitrators While employees may find arbitrators to be a more sympathetic fact-finder, an to be a more sympathetic fact-finder, an actual arbitration may not occur until actual arbitration may not occur until months after the demotion became months after the demotion became effective.effective.

Demotion Procedures: Demotion Procedures: Important QuestionImportant Question

Does Seniority play into demotions?Does Seniority play into demotions?– Is it a Is it a purepure or realignment demotion? or realignment demotion?– What are the reasons for the What are the reasons for the

demotion?demotion?

Demotion IssuesDemotion Issues

Employees who are demoted may Employees who are demoted may be eligible for Unemployment be eligible for Unemployment Compensation Benefits.Compensation Benefits.

Suspending a Suspending a Professional Employee Professional Employee

in Pennsylvaniain Pennsylvania

The The CurrentCurrent laws of laws of FurloughingFurloughing

Furlough of Furlough of Professional Professional EmployeesEmployees

Considerations under Section Considerations under Section 1124 and 1125.1 of the School 1124 and 1125.1 of the School CodeCode

Statutory Grounds for Suspension Statutory Grounds for Suspension of Professional Employees Under of Professional Employees Under

the School Codethe School Code

Section 1124 states:Section 1124 states:““Any board of school directors may Any board of school directors may suspend the necessary number of suspend the necessary number of professional employees, for any professional employees, for any cause hereinafter enumerated:cause hereinafter enumerated:(1)(1) Substantial decrease in pupil Substantial decrease in pupil enrollment in the school district;enrollment in the school district;

Statutory Grounds for Statutory Grounds for Suspension of Professional Suspension of Professional

Employees Under the School Employees Under the School CodeCode

(2) Curtailment or alteration of the (2) Curtailment or alteration of the educational program on recommendation of educational program on recommendation of the Superintendent, concurred in by the the Superintendent, concurred in by the Board of School Directors, approved by the Board of School Directors, approved by the Department of Education, as a result of Department of Education, as a result of substantial decline in class or course substantial decline in class or course enrollment or to conform with standards of enrollment or to conform with standards of organization or educational activities required organization or educational activities required by law or recommended by the Department by law or recommended by the Department of Education.of Education.

Statutory Grounds for Statutory Grounds for SuspensionSuspension

of Professional Employees Under of Professional Employees Under the School Code the School Code

(3) Consolidation of schools, whether (3) Consolidation of schools, whether within a single district, through a within a single district, through a merger of districts, or as a result of joint merger of districts, or as a result of joint board agreements, when such board agreements, when such consolidation makes it unnecessary to consolidation makes it unnecessary to retain the full staff of professional retain the full staff of professional employees.employees.

Statutory Grounds for SuspensionStatutory Grounds for Suspensionof Professional Employees Underof Professional Employees Under

the School Codethe School Code

(4) When new school districts are (4) When new school districts are established as the result of established as the result of reorganization of school districts reorganization of school districts pursuant to Article II., subdivision (i) of pursuant to Article II., subdivision (i) of the Act, and when such reorganization the Act, and when such reorganization makes it unnecessary to retain full makes it unnecessary to retain full staff of professional employees.staff of professional employees.

Statutory Grounds for Suspension Statutory Grounds for Suspension of Professional Employees Underof Professional Employees Under

the School Code the School Code

The four (4) grounds previously The four (4) grounds previously mentioned are the only grounds mentioned are the only grounds upon which a school district may upon which a school district may furlough a professional employee. furlough a professional employee. Attempts to furlough professional Attempts to furlough professional employees beyond those grounds employees beyond those grounds will not be unsuccessful.will not be unsuccessful.

Furlough for Furlough for Budgetary Reasons?Budgetary Reasons? Unfortunately Unfortunately nono, if that is your , if that is your onlyonly

justification.justification. In In Warwick Board of School Directors vs. Warwick Board of School Directors vs.

TherosTheros, 430 A.2d 268 (1981), in , 430 A.2d 268 (1981), in overturning the Board decision to overturning the Board decision to furlough a professional employee, the furlough a professional employee, the Court noted the school district Court noted the school district eliminated a non-mandated supervisory eliminated a non-mandated supervisory positions to reduce budgetary deficits. positions to reduce budgetary deficits. None of the enumerated reasons from None of the enumerated reasons from Section 1124 were listed in conjunction Section 1124 were listed in conjunction with the need to reduce fiscal deficits.with the need to reduce fiscal deficits.

Furlough for Furlough for Budgetary Reasons?Budgetary Reasons? Although school districts may not Although school districts may not

suspend professional employees suspend professional employees for reasons not enumerated in for reasons not enumerated in Section 1124, where the reasons Section 1124, where the reasons do exist, suspensions are proper do exist, suspensions are proper even if motivated by financial even if motivated by financial considerations.considerations.

Substantial Decrease in Substantial Decrease in Pupil Enrollment – Section Pupil Enrollment – Section 1124(1)1124(1) Most suspensions of school district Most suspensions of school district

employees, until recently, were based employees, until recently, were based on a substantial decrease in pupil on a substantial decrease in pupil enrollment.enrollment.

Courts have allowed school districts to Courts have allowed school districts to determine what constitutes determine what constitutes “substantial decrease” in enrollment.“substantial decrease” in enrollment.

No precise definition of No precise definition of substantial substantial decreasedecrease exists under the School Code exists under the School Code or through case law.or through case law.

Substantial Decrease in Substantial Decrease in Pupil Enrollment – Section Pupil Enrollment – Section 1124(1)1124(1) In In Phillippi v. School District of Phillippi v. School District of

Springfield TwpSpringfield Twp., 367 A.2d 1133 (1977), ., 367 A.2d 1133 (1977), the Commonwealth Court said school the Commonwealth Court said school boards must exercise sound discretion boards must exercise sound discretion and board action will not be disturbed and board action will not be disturbed absent a showing that discretion was absent a showing that discretion was abused, or that the action was arbitrary, abused, or that the action was arbitrary, based on a misconception of law or based on a misconception of law or ignorance of facts.ignorance of facts.

Substantial Decrease in Substantial Decrease in Pupil Enrollment – Section Pupil Enrollment – Section 1124(1)1124(1) Under the Under the PhillippiPhillippi standard, the standard, the

following has been deemed a following has been deemed a substantial decrease by the Courts:substantial decrease by the Courts:

1.1. 114 students over 10 years114 students over 10 years2.2. 486 students over 5 years486 students over 5 years3.3. 661 students over 6 years661 students over 6 years4.4. 250 students over 3 years250 students over 3 years5.5. 30 students in one department over 30 students in one department over

6 years6 years

Substantial Decrease in Substantial Decrease in Pupil Enrollment – Section Pupil Enrollment – Section 1124(1)1124(1) In In Colonial Education Ass’n v. Colonial Colonial Education Ass’n v. Colonial

School DistrictSchool District, 645 A.2d 336 (1995), the , 645 A.2d 336 (1995), the court described two methods in which a court described two methods in which a substantial decrease can be proven:substantial decrease can be proven:– Evidence of a general, cumulative Evidence of a general, cumulative

decline over a reasonable time.decline over a reasonable time.– Evidence of a decrease from one year Evidence of a decrease from one year

to the next that is so prominent as to to the next that is so prominent as to not require the other years as part of not require the other years as part of the analysis.the analysis.

Substantial Decrease in Substantial Decrease in Pupil Enrollment – Section Pupil Enrollment – Section 1124(1)1124(1) CautionCaution In In Colonial Education Ass’n v. Colonial Education Ass’n v.

Colonial School DistrictColonial School District, the court , the court held an 18 year look back period held an 18 year look back period was too long, absent justification was too long, absent justification for such a long period of time.for such a long period of time.

Substantial Decrease in Substantial Decrease in Pupil Enrollment – Section Pupil Enrollment – Section 1124(1)1124(1) While most cases are based on actual While most cases are based on actual

decreases of enrollment, school decreases of enrollment, school districts may also be able to consider districts may also be able to consider projections of future pupil enrollment projections of future pupil enrollment in order to justify an 1124(1) reason in order to justify an 1124(1) reason for furlough. for furlough.

Relying exclusively on projected Relying exclusively on projected enrollment may be problematic, enrollment may be problematic, however, in order to be successful however, in order to be successful under this prong of 1124.under this prong of 1124.

Curtailment or Alteration of Curtailment or Alteration of Educational ProgrammingEducational Programming

Section 1124(2)Section 1124(2)

This is the prong we have seen most often This is the prong we have seen most often over the last several years as enrollment has over the last several years as enrollment has generally increased making Section 1124(1) generally increased making Section 1124(1) less applicable.less applicable.

If a school district proceeds to furlough a If a school district proceeds to furlough a professional employee under Section 1124(2), professional employee under Section 1124(2), several criteria must be met in order to several criteria must be met in order to effectuate the furlough.effectuate the furlough.

Probably the most confusing of the Section Probably the most confusing of the Section 1124 options.1124 options.



Section 1124(2) requires the satisfaction of the Section 1124(2) requires the satisfaction of the following criteria:following criteria:1. Recommendation of curtailment or alteration 1. Recommendation of curtailment or alteration by District Superintendent.by District Superintendent.2. Concurrence in such action by the Board.2. Concurrence in such action by the Board.3. Approval of such action by the Department of 3. Approval of such action by the Department of Education.Education.4. Curtailment or alteration of educational 4. Curtailment or alteration of educational programming as a result of: (1) substantial programming as a result of: (1) substantial decline in class or course enrollment; or (2) to decline in class or course enrollment; or (2) to conform with standards of organization or conform with standards of organization or educational activities required by law or educational activities required by law or recommended by PDE.recommended by PDE.



If one of the four conditions is not If one of the four conditions is not satisfied, a suspension will not be satisfied, a suspension will not be permitted. permitted. Shegelski v. Mid Valley Shegelski v. Mid Valley School DistrictSchool District, 677 A.2d 367 , 677 A.2d 367 (1996).(1996).



Approval of the Secretary of Education Approval of the Secretary of Education as part of the process.as part of the process.– No statutory provisions govern the No statutory provisions govern the

substance or the procedure by which substance or the procedure by which PDE approves a suspension under PDE approves a suspension under Section 1124(2).Section 1124(2).

– PDE has issued a Basic Education PDE has issued a Basic Education Circular (BEC Circular (BEC § 1124) on the topic.§ 1124) on the topic.

BEC BEC §§1124 1124 4 Categories4 Categories

Based on the BEC, a Based on the BEC, a curtailment/alteration of programming curtailment/alteration of programming will be approved by the Department will be approved by the Department under the following 4 categories:under the following 4 categories:

1. Substantial decline in enrollment 1. Substantial decline in enrollment in a class in a class or course. or course.

2. Conform with standards of 2. Conform with standards of organization. organization.

3. Required by law.3. Required by law.4. Recommendations from PDE.4. Recommendations from PDE.

BEC BEC §§11241124

PDE will review requests for curtailment or alteration PDE will review requests for curtailment or alteration of the educational program using the following criteria:of the educational program using the following criteria:

All requestsAll requests must include board action as recorded in must include board action as recorded in board minutes as evidence of approval of the school board minutes as evidence of approval of the school district’s board of school directors.district’s board of school directors.

Substantial Decline in enrollment (category 1)Substantial Decline in enrollment (category 1)- The Department will approve a request to curtail or - The Department will approve a request to curtail or alter an educational program if the district establishes alter an educational program if the district establishes that such a request is the result of substantial decline that such a request is the result of substantial decline in class or course enrollment. To establish such a in class or course enrollment. To establish such a standard, the school district must submit data standard, the school district must submit data evidencing the following:evidencing the following:

BEC BEC §§1124 (Category 1124 (Category 1)1)

– a. that enrollment in the class a. that enrollment in the class or course has decreased at or course has decreased at least 20% from the school year least 20% from the school year five years prior; orfive years prior; or

– b. that enrollment for the class b. that enrollment for the class or course is less than ten or course is less than ten students.students.


CautionCaution: Enrollment is on a per class : Enrollment is on a per class or per course basis under this BEC and or per course basis under this BEC and Section 1124(2) where a suspension is Section 1124(2) where a suspension is necessitated by lower enrollment in a necessitated by lower enrollment in a particular program. particular program.

Whereas, under Section 1124(1) the Whereas, under Section 1124(1) the analysis was generally decrease of analysis was generally decrease of pupil enrollment across the District pupil enrollment across the District that justified a suspension.that justified a suspension.

BEC on BEC on §§1124(2) 1124(2) (Category 1)(Category 1)

Caution IICaution II School boards may not avoid the School boards may not avoid the

requirements of Section 1124(2) for requirements of Section 1124(2) for approval by PDE by characterizing a approval by PDE by characterizing a suspension as necessitated by suspension as necessitated by declining pupil enrollment when it was declining pupil enrollment when it was actually precipitated by curriculum actually precipitated by curriculum reorganization/ decrease in a specific reorganization/ decrease in a specific program.program.


Category 2Category 2 The Department will approve a school The Department will approve a school

district’s request to curtail or alter an district’s request to curtail or alter an educational program if it can establish the educational program if it can establish the curtailment or alteration is necessary to curtailment or alteration is necessary to conform with standards of organization. To conform with standards of organization. To establish:establish:– The District must submit certified information The District must submit certified information

from the superintendent demonstrating the from the superintendent demonstrating the requested curtailment or alteration will effect a requested curtailment or alteration will effect a change in the organization or curriculum that change in the organization or curriculum that results in a more effective educational program.results in a more effective educational program.

BEC BEC §§11241124(Categories 3 and 4)(Categories 3 and 4)

Categories 3 and 4Categories 3 and 4 PDE will also approve a curtailment and PDE will also approve a curtailment and

alteration of programming if such a alteration of programming if such a request is either:request is either:(a) based on activities recommended by PDE;(a) based on activities recommended by PDE;

(b) required by law(b) required by law

-In both circumstances, a district -In both circumstances, a district superintendent must identify and certify superintendent must identify and certify the recommendation from PDE or law that the recommendation from PDE or law that drives the decision to curtail or alter drives the decision to curtail or alter programs.programs.

BEC BEC §§11241124

Nothing precludes a school district Nothing precludes a school district from requesting a from requesting a curtailment/alteration of programs curtailment/alteration of programs based on all 4 categories if applicable. based on all 4 categories if applicable. In such an instance, the district will In such an instance, the district will need to provide evidence to PDE to need to provide evidence to PDE to justify each category, however.justify each category, however.

Application of Section Application of Section 1124 for Temporary 1124 for Temporary

Professional EmployeesProfessional Employees The reasons that justify furlough of The reasons that justify furlough of

professional employees appear to professional employees appear to be applicable to temporary be applicable to temporary professional employees as well.professional employees as well.

Though the case law is a bit messyThough the case law is a bit messy Generally, what is a furlough of a Generally, what is a furlough of a

tenured employee, is a contractual “ tenured employee, is a contractual “ non-renewal” of a TPEnon-renewal” of a TPE

Application of Section Application of Section 1124 for Temporary 1124 for Temporary

Professional EmployeesProfessional Employees A good case study and cautionary A good case study and cautionary

tale on the likely applicability of tale on the likely applicability of Section 1124 of the Code and Section 1124 of the Code and TPEs can be found in the TPEs can be found in the arbitration of the arbitration of the North Penn North Penn School District and the North School District and the North Penn Education Association. Penn Education Association. (2010) (Buchheit)(2010) (Buchheit)

North Penn v. NPEANorth Penn v. NPEA

The Association grieved the non-renewal The Association grieved the non-renewal of three TPEs even though the of three TPEs even though the Association stipulated the Board had Association stipulated the Board had justifiable reasons under the school justifiable reasons under the school codecode

It was the Association’s position, It was the Association’s position, however that regardless of the however that regardless of the substantive justifications, the Board substantive justifications, the Board failed to procedurally adhere to the failed to procedurally adhere to the Code. ( the Association cites Code. ( the Association cites CigarskiCigarski, a , a 1980 Commonwealth Court decision)1980 Commonwealth Court decision)


The Board argued that the Code The Board argued that the Code provisions applicable to PEs is not provisions applicable to PEs is not applicable to TPEs. (rely on the applicable to TPEs. (rely on the PhillipiPhillipi holding which states holding which states clearly the Code is not applicable clearly the Code is not applicable to TPEs), thus the procedural to TPEs), thus the procedural requirements did not apply as requirements did not apply as wellwell


Scott Buchheit, a seasoned Scott Buchheit, a seasoned arbitrator, agreed with the arbitrator, agreed with the Association.Association.

Regardless of whether the Board Regardless of whether the Board has the reasons or not, the has the reasons or not, the procedural requirements of procedural requirements of Section 1124 and the BECSection 1124 and the BEC

You Have the Authority You Have the Authority to Suspend, Now What?to Suspend, Now What? The grounds for suspension is half the The grounds for suspension is half the

battle. The next question that must be battle. The next question that must be asked is whether the proper employee asked is whether the proper employee or employees have been selected?or employees have been selected?

Section 1125.1 sets forth the following Section 1125.1 sets forth the following rules pertaining to the selection of rules pertaining to the selection of employees to be suspended:employees to be suspended:

Section 1125.1 – Section 1125.1 – Persons to be SuspendedPersons to be Suspended (a) professional employees shall be (a) professional employees shall be

suspended under Section 1124 in suspended under Section 1124 in inverse order of seniority within the inverse order of seniority within the school entity of school employment. school entity of school employment. Approved leaves of absences shall not Approved leaves of absences shall not constitute a break in service for constitute a break in service for purposes of computing seniority for purposes of computing seniority for suspension purposes. Seniority shall suspension purposes. Seniority shall continue to accrue during suspension.continue to accrue during suspension.

Section 1125.1 – Section 1125.1 – Persons to be SuspendedPersons to be Suspended

(b) where there has been a (b) where there has been a consolidation of schools, consolidation of schools, departments or programs, all departments or programs, all professional employees shall professional employees shall retain the seniority rights they retain the seniority rights they had prior to the reorganization or had prior to the reorganization or consolidation.consolidation.


(c) A school entity shall realign (c) A school entity shall realign its professional staff so as to its professional staff so as to insure that more senior insure that more senior employees are provided with employees are provided with opportunity to fill positions for opportunity to fill positions for which they are certificated and which they are certificated and which are being filled by less which are being filled by less senior employees.senior employees.


(d)(1) no suspended professional employee shall (d)(1) no suspended professional employee shall be prevented from engaging in another be prevented from engaging in another occupation during suspension.occupation during suspension.

(d)(2) suspended or demoted employees shall be (d)(2) suspended or demoted employees shall be reinstated on the basis of seniority within the reinstated on the basis of seniority within the school entity. No new appointments shall be school entity. No new appointments shall be made while there are suspended or demoted made while there are suspended or demoted employees available who are properly certified.employees available who are properly certified.

(d)(3) to be considered available, a suspended (d)(3) to be considered available, a suspended employee must annually report in writing his employee must annually report in writing his current address and his intent on accepting the current address and his intent on accepting the same or similar position offered.same or similar position offered.


Nothing in Section 1125.1 shall be Nothing in Section 1125.1 shall be construed to supersede or construed to supersede or preempt any provisions of a preempt any provisions of a collective bargaining agreement collective bargaining agreement negotiated by a school entity and negotiated by a school entity and the exclusive bargaining the exclusive bargaining representative of the employee in representative of the employee in accordance with the accordance with the Public Public Employe Relations ActEmploye Relations Act..

Persons to be Suspended Persons to be Suspended Some Considerations & Ongoing Some Considerations & Ongoing DisagreementDisagreement

Staff Realignment: Staff Realignment: straight linestraight line versus versus checkerboard realignmentcheckerboard realignment. . Employer argument for “straight Employer argument for “straight line” versus employee argument for line” versus employee argument for “checkerboard” realignment.“checkerboard” realignment.

Courts have been consistent in not Courts have been consistent in not requiring checkerboard realignment. requiring checkerboard realignment. Godfrey v. Penns Valley Area School Godfrey v. Penns Valley Area School DistrictDistrict, 449 A.2d 765 (1982)., 449 A.2d 765 (1982).

Persons to be Suspended Persons to be Suspended Some Considerations and Ongoing Some Considerations and Ongoing

DisagreementDisagreement

Overall, the issue of who is to be Overall, the issue of who is to be suspended under Section 1125.1 suspended under Section 1125.1 is fact intensive. Moreover, the is fact intensive. Moreover, the rights and responsibilities of the rights and responsibilities of the suspended under the Act leaves suspended under the Act leaves many question to be answered, many question to be answered, many of which have not been many of which have not been completely addressed by the completely addressed by the courts.courts.

NoteworthyNoteworthy

School Boards can bargain the School Boards can bargain the issue of Seniority as it pertains to issue of Seniority as it pertains to furloughs with professional furloughs with professional bargaining units.bargaining units.

Most do not have such provisions Most do not have such provisions within their contracts.within their contracts.

If the law does not change, If the law does not change, possibly something to consider.possibly something to consider.

TPEs and applicability TPEs and applicability of Section 1125.1of Section 1125.1

While Section 1124 is likely While Section 1124 is likely applicable in the non-renewal of applicable in the non-renewal of TPEs, Section 1125.1 is not.TPEs, Section 1125.1 is not.

In other words, seniority is not In other words, seniority is not part of the analysis when non-part of the analysis when non-renewing a TPE.renewing a TPE.

Employee Hearing Rights Employee Hearing Rights Under Sections 1124 and Under Sections 1124 and

1125.11125.1 Section 1125.1(f) states a Section 1125.1(f) states a

decision to suspend shall be decision to suspend shall be considered an adjudication within considered an adjudication within the meaning of the Local Agency the meaning of the Local Agency Law. Law.

Therefore, an affected employee Therefore, an affected employee has a right to a hearing should has a right to a hearing should they desire.they desire.

Employee Hearing Rights Employee Hearing Rights under Sections 1124 and under Sections 1124 and

1125.11125.1 An employee is entitled to An employee is entitled to

reasonable notice of the right to a reasonable notice of the right to a hearing and the opportunity to be hearing and the opportunity to be heard.heard.

A hearing is not mandated, A hearing is not mandated, however. however.

Should a hearing actually take Should a hearing actually take place, it would look very similar to place, it would look very similar to that of a employee dismissal matter.that of a employee dismissal matter.

Suggested Process in a Suggested Process in a nutshell: Curtailment/Alteration nutshell: Curtailment/Alteration

of Programmingof Programming

First, to the extent your district is First, to the extent your district is considering furloughs, your considering furloughs, your superintendent must be in the process superintendent must be in the process of justifying a curtailment of of justifying a curtailment of programming as part of an overall programming as part of an overall board resolutionboard resolution

It is suggested the Administration It is suggested the Administration consult with legal counsel on particular consult with legal counsel on particular procedural considerationsprocedural considerations

Suggested Process in a Suggested Process in a nutshellnutshell

Once a resolution is passed, Once a resolution is passed, which includes the which includes the recommendations of the recommendations of the superintendent, submit superintendent, submit immediately the request to PDEimmediately the request to PDE

Earlier the better, PDE was very Earlier the better, PDE was very slow last year in responding.slow last year in responding.

Once PDE has approved, identify Once PDE has approved, identify the proper individuals to furloughthe proper individuals to furlough


Notify the employee of the Notify the employee of the determination and their individual determination and their individual right to a hearing.right to a hearing.

The employee may chose an The employee may chose an arbitration under the Collective arbitration under the Collective Bargaining Agreement instead of Bargaining Agreement instead of a Local Agency Hearing before a Local Agency Hearing before the Boardthe Board


Generally, pre-deprivation Generally, pre-deprivation hearings are not required under hearings are not required under this process.this process.

For demotions, pre-deprivation For demotions, pre-deprivation proceedings are only required proceedings are only required when demoting for reasons of when demoting for reasons of performance.performance.

Current Position of Current Position of PDEPDE

From reports, PDE has liberalized the From reports, PDE has liberalized the approval process this year.approval process this year.

We have sought and received approval We have sought and received approval from PDE this year on the curtailment of from PDE this year on the curtailment of full day kindergarten for economic full day kindergarten for economic reasons.reasons.

It is advisable to contact Steve Fisher at It is advisable to contact Steve Fisher at PDE to discuss your curtailment proposal PDE to discuss your curtailment proposal in advance of board action in order to in advance of board action in order to assure PDE will approve the measureassure PDE will approve the measure

Contact InformationContact Information

Mark W. Fitzgerald, Esq.Mark W. Fitzgerald, Esq.FOX ROTHSCHILD LLPFOX ROTHSCHILD LLP

[email protected]@foxrothschild.com

Documents

The Economic Crisis: Furloughs, Layoffs & Demotions of Professional & Non-Professional Employees Presented by: FOX ROTHSCHILD LLP Mark W. Fitzgerald, Esquire