By Aaron O'Donnell, Partner
Cerritos Office
As noted in a recent AALRR alert, the March 1, 2012, decision of the Court of Appeal in Stockton Teachers Association v. Stockton Unified School District held that certificated employees hired into categorically funded positions pursuant to temporary contracts may nevertheless have the rights of probationary employees with respect to seniority, eligibility for tenure, and rehire rights after layoff. Although the case involved certificated employees of a K-12 district, the case has significant implications for community college districts as well in both the short- and long-term.
Employees heretofore considered to be temporary based on categorical funding may now have new arguments available to claim the rights of contract or tenured faculty. In the short term, the case will require community college districts to reassess their plans for layoffs and release of temporary employees, in order to determine whether, in light of the court’s holding, any additional resolutions should be adopted or notices sent by March 15, 2012. In the longer term, the case may require some districts to re-think their approach to the use of categorically funded temporary employees as a means of maintaining staffing flexibility.
Over the years, several decisions by the courts have supported temporary classification of categorically funded employees. However, the Court of Appeal ruled in Bakersfield Elementary Teachers Ass’n v. Bakersfield City School District (2006) 145 Cal.App.4th 1260, that notwithstanding the temporary nature of their positions, categorically funded employees may be entitled to the same procedural rights as permanent or probationary employees in the event of a layoff - i.e., a March 15 layoff notice and the right to request a hearing. As a result, many districts for several years have had a practice of sending categorically funded temporary employees "precautionary" layoff notices - maintaining that categorically funded employees are properly classified as temporary, while also affording procedural layoff rights.
The Stockton case, however, goes several steps further. The court identified several elements of proof that must be met to sustain a temporary classification based on categorical funding, including (but not limited to) a requirement that in order for an employee to be classified as temporary, the employee in question must be employed for the same duration as the categorically funded program - neither more, nor less. This has the potential to call into question the temporary classification of any categorically funded employee who has a temporary employment contract that specifies a term of employment that is different from the length of the categorically funded program for which he or she was hired.
For example, if an employee is hired pursuant to a series of one-year temporary contracts to work in a categorical program with a multi-year grant funding source, or a federal funding source that operates on a fiscal year that is different from the July 1- June 30 academic year, that employee may now have new arguments available to challenge his or her temporary classification. This is not to say that such arguments would necessarily prevail - there are counterarguments to be made, and the particular circumstances would matter - but the court’s holding introduces a new and significant element of uncertainty.
Therefore, going forward community college districts should consider not only their plans for sending notices by March 15, 2012, but also their employment practices with respect to categorically funded employees more generally for the 2012-2013 academic year and beyond. Districts should consult with legal counsel as to whether any change in the employment contracts issued to categorically funded employees is advisable, and also as to whether those employees previously considered to be categorically funded still meet the court's test as articulated in the Stockton case.
The March 1, 2012, decision is not necessarily the last word - it is possible, for example, that the California Supreme Court would review the case. However, until further notice, the decision is precedential.
Despite all of the uncertainties in education funding of recent years, many community college districts have been able to avoid the necessity of formal layoffs of tenured and contract faculty because they have been able employ and release faculty classified as temporary based on either their part-time status (an option not available to K-12 districts except in the adult school context) or their categorical funding. In light of the court’s ruling in Stockton, all community college districts, even (or especially) those that had not planned on any formal layoff, should reassess their plans and employment practices.
