Apr 22nd, 2024

Reviewing Abolition of Position Rules for a Tough Budget Season

Oh, how the pendulum swings. Many public school districts are facing significant impacts to their upcoming budgets due to cuts in State aid. As a result, school districts are being forced to consider layoffs for next school year. This is following several years of a tight labor market requiring numerous school districts to employ uncertified personnel to meet mandatory programming needs because certified personnel could not be found. Additionally, effective February 24, 2024, new Civil Service layoff and recall job protections were extended to cover non-competitive and labor class positions, in addition to previously protected competitive class positions. As a result, school district administrators should refamiliarize themselves with their legal obligations and Collective Bargaining Agreements regarding layoffs for administrators, teachers, and classified Civil Service staff.

The general rule is that, for covered positions, school districts must lay off the least senior person holding the position being abolished, or “last in, first out.” Therefore, calculating service time and preparing a seniority list, or in the case of classified Civil Service, getting such service time lists from your county Civil Service Department is extremely important. We recommend sharing seniority lists with the relevant collective bargaining unit before making any final decisions, to hopefully minimize grievances and litigation regarding reduction in staff.

Teachers, including LTAs, school counselors, school social workers, and school psychologists. When a teaching position is to be abolished, it is the person with the least seniority in the tenure area of the position who will be excessed. A teacher’s seniority is based upon total service within the tenure area without a break in service. If the teacher has worked at least 40% of the work week in his/her designated tenure area, it counts as full time service. Further, the Commissioner of Education has ruled that when determining layoffs an uncertified person does accrue seniority in the tenure area worked. This is different than service time for calculating time towards earning tenure, where service while uncertified does not count. Teachers also have bumping rights, so that teachers who are laid off from a position and have unbroken service with the district can retreat to a previously held teaching tenure area at the district and displace a teacher with less seniority in that tenure area.

Administrators. There are no administrative tenure areas defined by the Department of Education. Instead, each district is free to define tenure areas as broadly as “administration” or narrowly such as “High School Assistant Principal” and is not required to be consistent among its administrators. To determine whether the administrative tenure areas are narrowly or broadly defined, one must look to the language of the Board resolutions appointing administrators to probationary positions and granting tenure. Documents such as appointment notices will also be relevant. While administrators do not have bumping rights like teachers, if a district has appointed administrators to both broad and narrow tenure areas, it is possible that position being cut is held by an administrator with a broad tenure area, who may then displace a less senior administrator who has a more narrow tenure appointment.

Non-Instructional Staff. Civil Service Law §80 was amended effective February 24, 2024 to give non-competitive and labor class employees the same protections against abolishment that competitive class positions have long held. Exempt class positions still do not have any protections from layoff under Civil Service rules. Specifically, abolishment of positions within the same class (competitive, non-competitive, and labor class) must be made in the inverse order of original appointment on a permanent basis in the classified service in the service. Further, employees who are part-time earn seniority just as full-time employees. All temporary and provisional employees must be laid off first, then probationary employees, and only then may the employer start laying off personnel with permanent appointments. Finally, employees whose positions are abolished have the right to displace, a/k/a “bump” other less senior employees in positions in the direct line of promotion below their position. If there is no person lower on the direct line of promotion below them, an employee can retreat to the most recent prior permanent Civil Service position they held at the district, if they have more seniority than the current occupant. The local County Civil Service Commission maintains records regarding service time and lines of promotion for bumping.

If you have any questions about reductions in staff, we are happy to answer them.


James A. Gregory

James A. Gregory, a partner at Ferrara Fiorenza, has been practicing education law, labor law, municipal law, and public sector employment law for more than 20 years.

View Attorney Profile