United States: Court Grants Teachers With Provisional Credentials Right To Layoff Hearing, Ruling That Classification Of Teachers Based Solely On Type Of Credential Is Improper

Last Updated: February 7 2007
Article by Adam J. Fiss

This ASAP reports on an important decision issued by the California Court of Appeal regarding teachers serving under provisional credentials. The December 19, 2006, decision issued by California's Fifth District Court of Appeal, in Bakersfield Elementary Teachers Association v. Bakersfield City School District, has wide-ranging implications regarding employment of certificated employees in school districts and county offices of education throughout California. The decision affects not only how certificated employees are classified as temporary, probationary, or permanent, but also addresses the rights that must be extended to such employees.

Case Overview

In February 2003, the Bakersfield City School District was facing significant state budget uncertainties. To address the budget shortfalls, the District decided to reduce staffing, which was to include the release of over 100 temporary contract teachers and the layoff of a number of probationary or permanent teachers. To that end, in late February or early March 2003, the District notified the temporary employees of their release for the succeeding 2003-2004 school year. Among the temporary teachers who were given such notice were those who had been serving under so-called "emergency permits," "intern credentials," or "pre-intern certificates," because they had not yet taken the course work or passed the certifications to obtain a regular teaching credential. In March 2003, the District gave notice of possible layoff to all affected probationary and permanent teachers ("March 15th notice").

At the layoff hearing, the teachers' union argued that a large number of teachers who had been classified as temporary teachers were in fact misclassified as such and were really probationary teachers. The union claimed that because the teachers were not provided March 15th notices and were not included in the layoff proceeding, the seniority list might be affected and therefore the entire layoff proceeding had to be invalidated. Ultimately, the Administrative Law Judge rejected the union's arguments, concluded that there was a proper basis for layoff (i.e., the imminent budget shortfall), and authorized the layoff – a decision that the District's Board of Trustees upheld.

In August 2003, Bakersfield Elementary Teachers Association ("BETA") filed a lawsuit alleging, among other things, that the temporary teachers had been misclassified, and, in fact, were probationary teachers who could not be laid off because they had not been given March 15th notices or included in the layoff hearing. BETA also appealed the layoff decision on the grounds that the failure to include the temporary teachers in the layoff hearing "infected" the layoff proceedings. Disagreeing, the District argued that the temporary teachers had been properly classified, and that by waiting until after the March 15th deadline before raising the issue, the employees foreclosed the District from including in the layoff process whichever teachers felt they had been misclassified. The trial court agreed with BETA, concluding that the temporary teachers were misclassified and that both the release of temporary contract teachers and the layoff proceedings had to be invalidated. Accordingly, the trial court ordered the teachers reinstated with back pay, benefits, and full seniority for the period of their temporary employment. The District appealed the trial court's decision.

On appeal, the court first addressed the District's argument that because the employees waited until after March 15 to raise issues regarding their classification, the employees should be barred from making such a claim. Specifically, the District claimed that since the employees were aware of that classification and had not previously raised an objection they had acquiesced to that status and should be precluded from now challenging their classification. The court, however, rejected this claim noting that the District's argument "overlooks the fact the District led these employees to believe they had no choice but to acquiesce" in their designation. The court explained that even though the District used a contract for each of the classifications designating their employment status, "any contractual provision purporting to waive the protections accorded certificated school employees by the Education Code, including the provisions governing their classification and termination, is 'null and void.'" The court accordingly explained that the District could not argue that the temporary employees "had waited too long to assert a right the District misled them into believing they already had given up."

The court then turned to what it recognized as the principal issue on appeal: whether the District had properly classified the employees as temporary. Initially, the court remarked that "[a]s a general rule ... classification and certification operate independently of one another." In its analysis, the court rejected the District's position that under Education Code section 35160, the District had the discretion to classify employees as temporary based on the status of their certification to teach. The court explained that given the limited protection afforded to substitute and temporary employees, and that since these classifications "are narrowly defined by the Legislature, [they] should be strictly interpreted."

Next, the court examined the District's practice of classifying teachers based upon their possession – or lack thereof – of a teaching credential. The court concluded that the District could not base an employee's classification solely on his or her certification, e.g. whether the employee possessed a preliminary or clear credential. In reaching this conclusion, the court explained that an employee is not a temporary employee simply because he or she is not yet fully accredited, but rather because he or she occupies a position the Education Code defines as temporary. The court relied on the fact that there are only four classifications recognized by the Education Code: permanent, probationary, substitute, and temporary. According to the court, the Education Code recognizes two kinds of temporary employees: those who are employed to serve for less than three or four months or in limited assignments and those who are employed for up to one year to replace a certificated employee on leave or due to illness. The court did note that there are several situations where an employee is treated like a temporary employee. The court found that the District could classify as temporary employees only those who meet the requirements for a temporary employee as set forth in the Education Code and that such designation was not contingent upon the employee's credential.

The court therefore held that all certificated employees who were not properly classified as temporary, permanent, or substitute employees must be classified as probationary employees. After reaching this conclusion, the court analyzed what rights should be afforded to these probationary employees. Relying in large part on its decision in California Teachers Assn. v. Governing Bd. of Golden Valley Unified School Dist., as well as its interpretation of various Education Code statutes, the court held that the employees must be given the rights of a probationary employee, including the right to accrue seniority and the right to notice and a hearing in the event of a layoff. The court did limit its holding by noting that even though employees may have a seniority date, unless provided by statute, the time spent as a probationary employee cannot count toward obtaining tenure.

The court remanded the case back to the trial court to make certain determinations regarding the employees' correct classifications and the amount of back pay and benefits, if any, to which they were entitled. Significantly, in the court's order, it concluded that the employees were only entitled to back pay for the 2003-2004 school year because as probationary employees they had no entitlement to continued employment beyond that year.

Impact

  • If the Bakersfield decision stands (a Petition for Review with the California Supreme Court is pending), school districts will need to include provisionally credentialed teachers in their layoff proceedings.
  • With respect to damages claims for probationary employees, the Bakersfield decision confirms that damages should not exceed the relevant school year because probationary employees have no assured right to ongoing employment.
  • If the Supreme Court accepts review of this case or if the case is depublished, the court's ruling that provisionally credentialed teachers accrue seniority may place the various teachers' unions in a position where they may be unable to properly represent both credentialed and non-credentialed/provisionally credentialed teachers in a layoff hearing due to the uncertainty regarding whether non-credentialed employees should have seniority dates.

Recommendations

Until all of these issues have been sorted out, we have several recommendations:

  • Conduct a complete review and analysis of the classification of each certificated employee in the district – excluding only those who commenced their employment possessing either a preliminary or clear credential. Given the court's decision, unless an employee meets the statutory definition for designation as temporary, substitute, or permanent, the employee should be classified as probationary.
    • Although an employee may be designated as probationary, depending on what certification they possess, e.g. an emergency waiver or intern certificate, the employee may not be accruing credit toward permanent status or may only be able to accrue a limited amount of credit toward tenure. The court's decision will create situations where an employee is deemed probationary for longer than the generally accepted two-year period.
  • For those employees classified as temporary, ensure that the designation is supported by the applicable Education Code sections. Those include Section 44909 (categorical programs), Section 44919 (short term classes), and Section 44920 (leaves of absence). With respect to teachers replacing a teacher on a leave of absence, confirm that there are not more teachers out on a leave of absence than are being designated as temporary under Section 44920.
  • Based on the review, implement the necessary changes to employee classifications as well as adjust seniority dates to reflect the employee's first day of paid service as a probationary employee. In other words, using a date-of-hire list separate from a seniority list for "Probationary 0" employees is not feasible under this decision.
  • If a district is implementing a certificated layoff, probationary employees – including "Probationary 0" employees – should be afforded the due process steps set forth in Education Code sections 44949 and 44955, including being issued a March 15th notice and having the right to request a hearing.
    • Due to potential issues arising of whether university interns are entitled to such due process, it is our recommendation, that, at a minimum, any such employee be provided a "dual March 15th notice." The notice should state that the district is notifying them of their release consistent with Education Code section 44464. The notice should then continue to provide that in the event the employee is challenging that status or contending he or she has a right to the due process under Sections 44949 and 44955, then in accordance with those sections, the employee is being notified that his or services will not be required for the ensuing school year. In those situations, the employee should be allowed to request a hearing.

Given the complexity of this case and the potential affect on employee classifications, school districts may wish to provide their legal counsel with substantial advance notice before undertaking a layoff, in order that strategy (including seniority issues) may be evaluated.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions