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Tuesday, March 27, 2012

Determining the compensation to be paid a teacher absent from work when “school is in recess”

Determining the compensation to be paid a teacher absent from work when “school is in recess”
Appeal of Denise Zaccaro from actions of the Board of Education of the Garden City Union Free School District, Decisions of the Commissioner of Education, Decision #16,336

This appeal addresses the calculating the compensation to be paid a teacher absent from work during a period of time when there is an intervening “recess period.”*

Education Law §3101(3) sets out the methodology for determining a teacher’s salary in the event he or she does not fulfill his or her "professional service obligation" and provides that such compensation is to be prorated as follows: In the event the teacher does not render service during the full 10 months that public schools are required to be in session “[f]or purposes of prorating the salary of a teacher not rendering all the service required of teachers during such period, the monthly rate for services rendered shall be at least one tenth of the salary and the daily rate at least one two-hundredth of the salary.” 

Citing Matter of Swaim, et al. (9 Ed Dept Rep 23, Decision No. 8031), the Commissioner said that there is an ambiguity in Education Law §3101(3) “... resulting from the statutory rate of one two-hundredths and the factual situation that some months have fewer or more than 20 working days.” The Commissioner then stated that this ambiguity can most reasonably be resolved by the following interpretation of the statute:

If the teacher provides services for half or less of the working days in the month, he or she should be reimbursed at the rate of one two-hundredths of his annual salary for each day he or she works.  Similarly, if a teacher works more than half of the required working days in a given month but is absent without authority for the remainder of such working days, a deduction of one two-hundredths of his annual salary should be made for each of the days of unauthorized absence.

Using the Swaim method entails counting all of the “working days” during a given month (excluding days in which school is not in session) and dividing that number in half, then comparing that number with the amount of days the teacher worked.

If, said the Commissioner, the number of days worked exceeds one-half of the “working days” in that month, the teacher would be entitled to one-tenth of his or her annual salary, minus one two-hundredths for each “working day” he or she did not work. 

On the other hand, the Commissioner indicated that in the event “the number of days the teacher actually worked is equal to or less than half of the ‘working days’ in that month, the teacher would be entitled to payment only for each of the individual days worked (or one two-hundredths of his or her salary for each day).”

In Denise Zaccaro case there were 15 total working days in the month of April, 2009.  There were six working days prior to spring recess: April 1-8; and nine working days following spring recess: April 20-30.  Accordingly, all teachers were required to render service to the district on each of those 15 working days during the month of April. Zaccaro, however, was on paid leave through April 8, 2009. Thus, said the Commissioner, she must be deemed to have worked the six working days included in that period. 

Applying Swaim, the Commissioner said that as Zaccaro had worked only six of the required 15 working days in April 2009 and, because she worked less than half the working days in the month of April, she was entitled to one two-hundredths of her salary for each “day worked.” 

As during the period of April 9-17, the spring recess, no other teacher was required to render service, yet received compensation, and the school district would not receive any more service from Zaccaro than from any other teacher, under the rationale of these prior decisions, which clearly resulted in teachers being compensated for days in which school was not in session, the days of spring recess should be counted as days worked, under ordinary circumstances.

Zaccaro case, however, is somewhat more complicated. 

Although it is undisputed that at some point, either immediately after April 8, 2009 or effective April 15, 2009, the school district placed Zaccaro on unpaid leave, a pending grievance proceeding alleges that the school district violated the collective bargaining agreement when it placed her on unpaid leave effective April 15, 2009. 

The bottom line: Any day on which Zaccaro was not on unpaid leave during the period from April 9 to April 17, she was entitled to one two-hundredth of her salary.  

1. If such unpaid leave commenced on April 15, 2009, as Zaccaro contends, she would be entitled to four days compensation from April 9 to April 14; or

2. If, Zaccaro was placed on unpaid leave effective April 8, as the school district claims, Zaccaro would not be entitled to any additional compensation "unless the unpaid leave was set aside in the grievance proceeding or otherwise."  

Finding that record was not adequate to make such determination, the Commissioner remanded the matter to school district to determine if Zaccaro is entitled to additional compensation and directed the school district “to the extent they have not already done so,” one two-hundredth of her salary for any day during the period of April 9-17, 2009 on which she was determined to be entitled to paid leave.
* In this appeal the Commissioner was asked to determine if a teacher, Denise Zaccaro, was entitled to be paid for seven days during spring recess.

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume51/d16336.html


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