BILL ANALYSIS �
SENATE COMMITTEE ON EDUCATION
Alan Lowenthal, Chair
2011-12 Regular Session
BILL NO: AB 2307
AUTHOR: Butler
INTRODUCED: March 22, 2012
FISCAL COMM: No HEARING DATE: June 20, 2012
URGENCY: No CONSULTANT:Beth Graybill
SUBJECT : Classified school employees.
SUMMARY
This bill provides that classified employees in school and
community college districts who pass a prescribed period of
probation are permanent employees of the district.
BACKGROUND
Existing law defines "permanent" in a nonmerit system school
district, as used in the phrase 'permanent employee' includes
tenure in the classification in which the employee passed the
required probationary period, and includes all the incidents
of that classification. (Education Code � 45101, � 88001)
Current law specifies that classified employees who are laid
off are eligible for reemployment for a period of 39 months
and must be reemployed in preference to new applicants. (EC
� 45298, � 88117)
Current law further specifies that any permanent classified
employee of a school district who voluntarily resigned from
his or her permanent classified position may be reinstated or
reemployed by the governing board of the district within 39
months after his or her last day of paid service to a
position in his former classification as a permanent or
limited-term employee, or as a permanent or limited-term
employee in a related lower class or a lower class in which
the employee formerly had permanent status. (EC � 45309, �
88128)
Existing law requires the governing boards of school and
community college districts to prescribe written rules and
regulations governing the personnel management of the
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classified service, whereby employees are designated as
permanent employees of the district after serving a
prescribed, specific probationary period, not to exceed one
year. The length of a probation period varies depending on
the position and is determined through collective bargaining.
Under current law, a permanent employee who accepts a
promotion and fails to complete the probationary period for
that promotional position returns to the classification from
which he or she was promoted. (EC � 45113, � 88013)
ANALYSIS
This bill applies to only to nonmerit system school and
community college districts. Specifically, this bill
1) Revises the definition of "permanent" as used in the
phrase "permanent employee" to mean an employee who has
served the prescribed period of probation and further
states that:
a) A permanent employee remains a permanent
employee of the public school employer when the
employee is moved to another classification.
b) A permanent employee who is placed on a
reemployment list and is subsequently reemployed by
the same public school employer that placed him or
her on the reemployment list continues being a
permanent employee when reemployed regardless of
the classification in which he or she is placed
when reemployed.
STAFF COMMENTS
1) Need for the bill : Current law requires classified
employees to complete a period of probation for each
classification in which they are appointed. An employee
who is promoted to a higher classification must complete
a new period of probation for the new classification.
Similarly, an employee who moves to a different
classification must also complete a new period of
probation for that specific classification. Upon
satisfactory completion of the probation period, the
employee attains permanency in the classification, which
means the employee cannot be fired or removed from the
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classification without observation of due process. If
the employee does not complete or fails the probation,
he or she has return rights to a previous position in
which permanency was attained. The sponsor of this
bill, the California School Employees Association
(CSEA), maintains that a classified employee should
remain a permanent employee when he or she moves to
another classification.
According to the author, this bill is necessary to protect
the rights of classified employees by clarifying when
permanency is attained. The state's fiscal crisis and
the resulting budget reductions in school and community
college districts has had a significant, if not
disproportionate, impact on classified employees. By
one estimate, nearly 30,000 classified employees have
been laid off for lack of work or lack of funds as
districts have reduced or eliminated positions and
services. The CSEA maintains that laid-off employees
who are reemployed in a position for which they had not
previously attained permanent status should not be at
risk of being dismissed and should have the right to be
returned to the district's reemployment list.
2) CSEA v. East Side Union High School District . The need
for this bill is prompted by a case in which an employee
had been employed in the position of school community
liaison (SCL) for several years. Following a reduction
in force (RIF), in which the position was eliminated and
the employee was laid off, the employee applied for and
was hired into a campus monitor (CM) position (a lower
position), which the employee had not previously held.
At the outset, the employee was informed that she would
be on a probationary status for six months. Prior to
the end of the probationary period, the employee was
released from her position. Subsequently, the employee
and CSEA filed suit against the district arguing that
the employee's permanent status did not end when she was
laid off from the SCL position and should have continued
once reemployed in the CM position. In CSEA v. East
Side Union High School District (2011) 193 Cal.App. 4th
540, the California Court of Appeal affirmed that the
permanent status of a classified employee in a nonmerit
system district is restricted to the position or class
in which permanency is attained, thus confirming that
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classified employee protections, including re-employment
and due process rights, are limited to positions and
classifications previously held.
3) The importance of permanency . Permanent status becomes
important when an employee is dismissed from his or her
job or when an employee is laid off. In a dismissal,
permanency gives an employee certain property rights to
his or her job. In Skelly v. State Personnel Board
(1974) 15 Cal. 3d 194, the California Supreme Court
ruled that employees who can be dismissed only for
"cause" (i.e. permanent employees) have a property
interest in continued employment and may not be deprived
of their job without the observation of due process.
When a district finds it necessary to dismiss a
permanent classified employee from his or her job or
move the employee to a different position, the employee
has certain rights, including the right to a "Skelly"
hearing, which enables the individual to respond to the
charges brought against him or her by the employer.
In a layoff, classified employees who have attained permanent
status have the right to reemployment for 39 months and
have preference over new applicants in positions for
which they are qualified. They must complete a new
probationary period if reemployed in a different
position from that in which they attained permanent
status. Although employers indicate that employees who
do not successfully complete their probation are
returned to the 39-month reemployment list, CSEA argues
the practice is not consistent across districts.
This bill would make an employee a permanent employee once he
or she completes a single, initial probationary period.
Employers have expressed concern that the effect of this
change would be to grant an employee property rights to
any subsequent position taken, irrespective of whether
the employee demonstrates the ability to do the job.
Employers argue they would no longer have the
opportunity a probation period provides to ascertain
whether an employee demonstrates competence in the
position before granting permanent status. Opponents
maintain AB 2307 could have "a chilling effect on school
hiring practices" and give employers an incentive to
hire staff from "outside" over existing employees
because a "new" employee would be required to complete a
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probation period.
4) Interaction with Tucker rights . In Tucker v. Grossmont
Union High School District (2008) 168 Cal.App.4th 640,
(Tucker) the court held that the reemployment preference
applied not only to positions previously held by the
person who was laid off, but also to lateral or lower
positions not previously held. (Employees already had
the right to return to any classification in which they
previously completed probation). Since Tucker grants
preference for employment in any position for which an
employee is qualified (meets the minimum
qualifications), school employers must give preference
to laid off employees over new applicants who may be
more qualified.
Opponents maintain that if AB 2307 is enacted, school
employers would (as a result of Tucker) be required to
give laid-off employees preferences to any lateral/lower
position for which they meet the minimum qualifications
and grant permanency to those positions. Opponents
further argue that the bill creates confusion. Does the
proposed language give more rights to a returning
laid-off employee than to a continuing employee? How
would the rights established by AB 2307 interact with
rights bargained for in local collective bargaining
agreements?
Restricting permanency to the position after completion of a
probation period enables employers to continue to
thoroughly assess an employee in a new position and
would ensure that school employers can place candidates
in positions for which they are qualified and in which
they can succeed. Opponents argue that AB 2307
interaction with Tucker rights would have the effect of
"securing permanent employment status to someone who has
not proven that they are fit for the new classification
and thereby limit a district's flexibility to make
adjustments as may be necessary."
To maintain the ability of employers to assess the skills of
individuals placed in a different classification yet
ensure that laid-off employees who unsuccessfully
attempt reemployment in another position can be returned
to the reemployment list, staff recommends the bill be
amended to delete the provisions that would make an
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employee permanent when moved to another classification
and instead specify that a permanent employee who is
placed on a reemployment list and is subsequently
reemployed by the same district that placed him or her
on the list retains the right to be returned to the
reemployment list for the remainder of the initial 39
month period, regardless of the classification in which
he or she is placed when reemployed.
5) Potential cost pressure ? This bill is keyed non-fiscal.
However because employers would be required to observe
due process in the event a permanent employee proves
unsuccessful in a new position, this bill could result
in districts facing increased costs due to the potential
for more Skelly hearings.
6) Related and prior legislation .
AB 1908 (Alejo) increases, from 45 to 60 days, the layoff
notice requirement for classified employees working in
California public schools and community
colleges. This measure was heard by this Committee on
June 13, 2012 and passed on a 6-0 vote.
AB 2125 (Hall) authorizes the Los Angeles Unified School
District to make appointments to specified
classifications of positions from other than the first
three ranks on an eligibility list. This measure was
heard by this Committee on June 13, 2012 and passed on a
6-0 vote.
SUPPORT
American Federation of State, County and Municipal Employees,
AFL-CIO
California Federation of Teachers
California Labor Federation
California Professional Firefighters
California School Employees Association
Laborers' Local 777
Service Employees International Union
OPPOSITION
Association of California Community College Administrators
Association of California School Administrators
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California Association of School Business Officials
California County Superintendents Educational Services
Association
California School Boards Association
Riverside County School Superintendents' Association
Riverside County Superintendent of Schools, Kenneth M. Young