Preparing for Possible Reductions in Force

In April 2020, Governor Cuomo announced the possibility of mid-year state aid cuts of up to twenty percent if the federal government did not provide financial assistance. Even though on September 16, 2020 Governor Cuomo announced that the aid to be disbursed in September will not be reduced, the already reduced state aid, along with increased costs associated with the reopening of schools amidst COVID-19, has resulted in significant strains on district budgets. Considering the financial realities, districts/BOCES are also struggling with possible staff reductions.

As a rule, school districts and BOCES must abolish the position of the least senior individual. This has been referred to as the “Last In, First Out” rule. To properly implement the “last in, first out” rule with respect to abolishing positions, school districts must carefully review records such as appointments, attendance records, transfer of assignments, and resignations for the purpose of determining who actually has the least seniority because it is not as simple as the last appointed individual. For example, unless provided otherwise in the collective bargaining agreement, unpaid leaves of absence do not count towards seniority. Another factor impacting the calculation of seniority would be an assignment outside a teacher’s board-appointed tenure area.

Determining who the last one in will depend on the type of employee – non-instructional, teacher, or administrator. Whatever the nature of the employment, it is recommended that school districts and BOCES ensure that all seniority lists are up-to-date and accurate to avoid disputes if reductions are needed.

Non-Instructional Staff. The reduction rules for non-instructional staff are governed by statute and/or collective bargaining agreements. For example, competitive positions are governed by the Civil Service Law, and provide such employees with certain recall rights. However, non-competitive, exempt, and labor positions are not statutorily governed, but such employees may have seniority and recall rights set forth under an applicable collective bargaining agreement. Therefore, when assessing which positions to abolish, it is important to consider the civil service classification of the position and review the applicable collective bargaining agreements.

Teachers. For the purpose of teacher reductions, teachers’ seniority is based upon total service within a tenure area without a break in service with the district or BOCES. Each year of service is counted, if the teacher has worked at least 40% of the work week in his/her designated tenure area. A teacher’s tenure area is governed by Part 30 of the Regents Rules. For example, the Rules designate elementary, teaching assistant, secondary science, secondary English, secondary mathematics as tenure areas. Please keep in mind that there are special rules for teachers on special assignment who are providing instructional support services (i.e., professional development, pedagogical support, and other services offered by teachers to other school staff).

Administrators. The Regents Rules regarding tenure areas for teachers do not apply to administrative staff. The administrative tenure areas can be defined either narrowly or broadly. A narrowly defined administrative tenure area generally focuses on the position, for example, assistant principals. On the other hand, a broadly defined administrative tenure area, could encompass all administrators. To determine whether the administrative tenure areas are narrowly or broadly defined, one must look to the language of the Board resolutions appointing an administrator on probation and tenure, appointment notices, and similar documents.

With all the rules associated with the calculation of seniority, where to start may seem overwhelming. It is recommended that districts/BOCES first start with established seniority lists and review these lists along with the employee’s records to confirm accuracy. After a review of employee records, but before making any reductions in staffing, it is recommended that the districts/BOCES consult with the unions to reach a mutual understanding regarding seniority lists. By consulting with the unions in advance of reductions, districts/BOCES may minimize the likelihood of challenges from or on behalf of excessed employees.

If you have any questions regarding the foregoing, or need assistance with these issues, please contact us at one of the numbers listed below.