Monday, December 15, 2014

Calculating a teacher's seniority for layoff and preferred eligible list purposes


Calculating a teacher's seniority for layoff and preferred eligible list purposes 
Decisions of the Commissioner of Education, Decision No. 16,686

An educator [Teacher A] challenged the actions of the School District in calculating her seniority for layoff and  preferred eligibility list  purposes. Teacher A claimed that this miscalculation resulted in her loss of an opportunity to be recalled to a full-time leave replacement substitute teaching position and asked the Commissioner to declare that she had greater seniority to another teacher, Teacher B, and to direct the District "to immediately transfer her to the relevant full-time leave replacement position and correct her place on the seniority list. 
 
The Commissioner noted that due to budgetary constraints, the School District had abolished both TeacherA's and Teacher B's positions in the elementary tenure area.

Although the Commissioner dismissed Teacher A's appeal on procedural grounds,* the decision notes that "Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits."

The Commissioner said that prior to Teacher A's appointment as a probationary teacher she had served in various capacities as a per diem substitute teacher in the district. The District had credited Teacher B with 8.97794 years of seniority and had credited Teacher A with 8.44 years of seniority. Teacher A alleged that District incorrectly calculated her seniority by failing to include time served as a "regular and consistent substitute."

Teacher A contended that based on the actual duties performed while serving as a per diem substitute in the elementary tenure area, she should be provided seniority credit for time served as a per diem substitute. The District, in contrast, argued that it had accurately calculated Teacher A's seniority, which should not include periods of time during which Teacher A served as a temporary per diem substitute.

The Commissioner explained that "It is well settled that service as a full-time regular substitute teacher entitles such teacher to seniority credit, when such service immediately precedes a probationary appointment." However, said the Commissioner, it is also clear that “an ‘itinerant’ or per diem substitute assigned on a temporary, as-needed basis does not accumulate seniority.”

In addition, the Commissioner observed that it is the nature and continuity of the particular substitute assignment that determines whether or not such service was regular, and therefore sufficient to warrant seniority credit.

While Teacher A was properly granted seniority credit for the period in which she served as a full-time leave replacement or regular substitute teacher in one particular class, the Commissioner said that the record reflected that other specific substitute service for which Teacher A sought seniority credit was, by its nature, per diem. 
 
Although Teacher A was required to report to one of the School District's elementary schools, the fact that Teacher A served in certain classrooms for a few days or a week at a time on an as-need basis does not change the fundamental nature of her position as a per diem substitute position. Accordingly, although Teacher A's substitute service may have been regular and consistent within the school building, because she substituted for various teachers, in various capacities, and for various time periods, the Commissioner said that the School District had  properly omitted Teacher A’s per diem substitute service when calculating her seniority.

* The most significant omission was A's failure to name B as a necessary party as B's rights could be adversely affected were A to prevail in her appeal,

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume54/d16686

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Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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