Retaining Hourly Employees During Shutdowns May Warrant MOA’s

Due to Covid-19 exposures and/or increased infection rates, school districts are being forced to close buildings on a short-term basis. This can result in complications for hourly personnel, which can, in turn present complications for the district as a whole. For example:

• the lack of consistent full-time employment and pay may prompt them to find employment elsewhere;
• certain closures may result in certain employees receiving less than full-time hours while others continue to receive full-time (this can be especially problematic when dealing with bus drivers and bumping rights); and
• the consistent reduction in hours may also jeopardize an affected employee’s full-time status for healthcare purposes.

We have seen many different closing scenarios, including districts closing for one or two days, closing for up to two weeks, certain buildings only closing for a few days or weeks, and districts closing once a week consistently for the foreseeable future (e.g. every Wednesday for remote instruction). In many of these situations, school officials are looking to pay hourly employees even when they do not work 40 hours a week in order to: 1) ensure the continuity of educational services, 2) retain qualified employees available to provide full-time work responsibilities, and 3) avoid negative impacts on employees resulting from a temporary decrease in hours.

If a school district is faced with such a shutdown and is looking to pay hourly employees their full wages, it is a good idea to consider entering into a memorandum of agreement with your affected unions. The purpose of the agreement would be to protect the school district in the event of an audit (e.g., State Comptroller, etc.) so that it is clear that the payment to such workers is not an unconstitutional gift of public funds. Of course, any such MOA would need to address the unique challenges presented by Covid-19 and clearly state that it would not be precedent setting.

Should you have any questions about this topic, please feel free to contact Katherine Gavett at one of the numbers listed below.