Human Resources Academy II for Community College Districts

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A LL A BOUT THE A UTHORS With offices in Los Angeles, San Francisco, Fresno, San Diego and Sacramento, the law firm of Liebert Cassidy Whitmore represents Community College District management in all aspects of labor and employment law, labor relations, and education law as well as providing advice and representation in business and facility matters, both transactional and litigation. The Firm's representation of Community College Districts throughout California, encompasses all phases of counseling and representational services in negotiations, arbitrations, fact findings, and administrative proceedings before local, state and federal boards and commissions, including the Public Employment Relations Board, Fair Employment and Housing Commission, Equal Employment Opportunity Commission, Department of Labor and the Office for Civil Rights of the U.S. Department of Education (OCR). In addition, the Firm handles bidding questions, contract review and revision as well as other contracting issues. The Firm regularly handles a wide variety of labor and employment litigation and litigation regarding business and facilities issues, from the inception of complaints through trial and appeal, in state and federal courts. Liebert Cassidy Whitmore places a unique emphasis on preventive measures to ensure compliance with the law and to avoid costly litigation. For more than thirty years, the Firm has successfully developed and presented training workshops and speeches on all aspects of employment relations for numerous public agencies and state and federal public sector coalitions, including the Community College League of California (CCLC), Association of California Community College Administrators (ACCCA), Association of Chief Human Resources Officers for Community College Districts (ACHRO), California Community College and University Police Chiefs Association (CA CUPCA), Association of Chief Business Officials (ACBO), California Community College Chief Information Service Officers (CCCCISO), Community College Facility Coalition (CCFC), National Employment Law Institute (NELI), and the Public Agency Risk Management Authority (PARMA).

This workbook contains generalized legal information as it existed at the time the workbook was prepared. Changes in the law occur on an on going basis. For these reasons, the legal information cited in this workbook should not be acted upon in any particular situation without professional advice.

Copyright © 201 9 Liebert Cassidy Whitmore. All rights reserved. No part of this publication may be reproduced, stored, transmitted, or disseminated in any form or by any means without prior written permission from Liebert Cassidy Whitmore.

T ABLE OF C ONTENTS

5-19 C

S ECTION 1 Hiring and Retaining Employees with Criminal Records..............................................................................................8 A. Introduction .....................................................................................................................................................8 B. Defining Terms .............................................................................................................................................10 1. Sex Offenses ..........................................................................................................................................10 2. Drug Offenses ........................................................................................................................................11 C. Academic Employees ....................................................................................................................................11 1. Conviction of Sex Offenses or Controlled Substance Offenses .............................................................11 2. Compulsory Leave of Absence upon Being Charged with Sex or Controlled Substance Offense ..................................................................................................................................12 3. Access to Criminal Records ...................................................................................................................12 4. Employment of Sexual Psychopaths ......................................................................................................13 D. Classified Employees ....................................................................................................................................13 1. Conviction of Sex Offenses or Controlled Substance Offenses .............................................................13 2. Employment of Sexual Psychopaths ......................................................................................................14 3. Access to Criminal Records ...................................................................................................................14 4. Compulsory Leave of Absence upon Being Charged with Sex or Controlled Substance Offense—Merit Districts.......................................................................................................14 E. Student Employees—87406.5 .......................................................................................................................15 S ECTION 2 Employment of Temporary Faculty Members.............................................................................................................15 A. Employment of Academic Employees in Categorically Funded Projects .....................................................15 1. Introduction ............................................................................................................................................15 2. Length of Employment ..........................................................................................................................16 3. Advancement Toward Tenure ................................................................................................................16 4. Contract Employees Reassigned to Categorical Programs.....................................................................16 5. Educational Administrators....................................................................................................................16 B. Employment of Adjunct Faculty ...................................................................................................................17 1. Overview................................................................................................................................................17 2. Limitations on the Number of Adjuncts.................................................................................................17 3. Classification of Adjuncts ......................................................................................................................17 4. Calculating the “67 Percent Threshold” for Adjunct Employment ........................................................20 5. When Adjunct Hours May Advance an Employee Toward Tenure .......................................................22 6. Other Relevant Education Code Statutes ...............................................................................................22 7. Impact of Collective Bargaining Agreements ........................................................................................23 S ECTION 3 Leaves for Academic Employees ................................................................................................................................23 A. Industrial Injury Leave—87787 ....................................................................................................................23 B. Family Sick Leave and Personal Necessity Leave ........................................................................................25 1. California’s Paid Sick Leave Law..........................................................................................................25 2. Family Sick Leave (“Kin Care”) ............................................................................................................25 3. Education Code Section 87784 ..............................................................................................................26 4. Differential Pay ......................................................................................................................................27 5. Parental Leave ........................................................................................................................................27 C. Sabbatical Leave ...........................................................................................................................................28 1. Purpose of Leave....................................................................................................................................28 2. Permissible Length of Leave ..................................................................................................................28 3. Employee Eligibility for Leave ..............................................................................................................28 4. Compensation During Sabbatical Leave ................................................................................................28

5. Written Contract Required .....................................................................................................................29 6. Reinstatement Required .........................................................................................................................29

S ECTION 4 Catastrophic Leave ......................................................................................................................................................30 A. Overview .......................................................................................................................................................30 B. Requirements for Donating Leave.................................................................................................................30 C. Donation and Use of Eligible Leave Credits .................................................................................................30 D. Adoption of Rules and Regulations...............................................................................................................31 E. Collectively Bargained Catastrophic Leave Policies.....................................................................................31 S ECTION 5 Termination of Academic Employees .........................................................................................................................31 A. Overview and Grounds..................................................................................................................................31 B. The 90-Day Notice: Prerequisite to Charging Unprofessional Conduct or Unsatisfactory Performance ..........................................................................................................................33 C. Immoral Conduct...........................................................................................................................................33 D. Evident Unfitness for Service........................................................................................................................34 E. Persistent Violation of or Refusal to Obey the State’s School Laws or Reasonable Regulations of the Board of Governors or the Board of Trustees (Insubordination) ....................................34 F. Steps in the Disciplinary Process ..................................................................................................................34 G. The Four-Year Rule ......................................................................................................................................35 H. Hearing Rights: Arbitrator or Administrative Law Judge ............................................................................36 1. Arbitrator................................................................................................................................................36 2. Administrative Law Judge .....................................................................................................................36 S ECTION 6 Layoffs of Academic Employees.................................................................................................................................37 A. Grounds for Academic Layoffs .....................................................................................................................37 B. Composition of the List: Who Gets In and Who Does Not ..........................................................................38 1. Seniority versus Tenure..........................................................................................................................38 2. Are Your Temporary Faculty Really Temporary? .................................................................................38 3. Educational Administrators....................................................................................................................39 C. Order of the List: Calculating Faculty Seniority ...........................................................................................39 D. Implementation of the List ............................................................................................................................41 1. Minimum Qualifications and Competency ............................................................................................41 2. “Skipping” Employees ...........................................................................................................................41 3. Employee “Bumping” Rights.................................................................................................................41 4. Reemployment Rights ............................................................................................................................42 S ECTION 7 Status and Rights of Child Development Center (CDC) Teachers ..............................................................................42 A. Overview .......................................................................................................................................................42 B. CDC Teachers are Academic Employees, but Not Faculty...........................................................................44 C. CDC Teachers may Acquire Permanent Status, but Not Tenure...................................................................44 D. The Layoff and Reemployment Rights of CDC Permit Teachers .................................................................45 1. Layoff of Probationary and Permanent CDC Permit Teachers ..............................................................45 2. 39-Month Reemployment Rights of Permanent CDC Permit Teachers.................................................46 S ECTION 8 Personal Service Contracts ..........................................................................................................................................46 A. Overview .......................................................................................................................................................46 B. Personal Service Contracts to Achieve Cost Savings ....................................................................................47

C. Personal Service Contracts for Unique or Specialized Services....................................................................48 D. Collective Bargaining Issues .........................................................................................................................49

S ECTION 9 Administrator Contracts ..............................................................................................................................................50 A. Employment by Assignment or Contract ......................................................................................................50 B. Nonrenewal of Administrator Contracts........................................................................................................50 C. Substitute or “Acting” Administrators ..........................................................................................................51 D. Discipline and Dismissal of Administrators ..................................................................................................51 S ECTION 10 Disability Allowance and Disability Retirement .........................................................................................................52 A. Overview .......................................................................................................................................................52 B. Differences Between Disability Allowance and Disability Retirement ........................................................53 C. Reinstatement ................................................................................................................................................53 D. Disability Allowance Generally ....................................................................................................................53 1. Eligibility ...............................................................................................................................................53 2. Calculating Disability Allowance ..........................................................................................................54 3. Working While Receiving a Disability Allowance ................................................................................54 4. Termination of Disability Allowance.....................................................................................................55 5. Calculating Service Retirement Allowance after Receiving a Disability Allowance.............................55 E. Disability Retirement Generally....................................................................................................................55 1. Eligibility ...............................................................................................................................................55 2. Calculating a Disability Retirement Allowance .....................................................................................56 3. Working While Receiving a Disability Retirement Benefit ...................................................................56 4. Termination of Disability Retirement Benefit........................................................................................57 F. District Obligations .......................................................................................................................................57 G. Education Code Sections Cited .....................................................................................................................58

E NDNOTES ...................................................................................................................................................................61

H IRING AND R ETAINING E MPLOYEES WITH C RIMINAL R ECORDS

Section 1

Relevant Education Code Provisions: 87010; 87011

A. I NTRODUCTION Whether an applicant or employee’s criminal record constitutes a basis to deny employment will depend on the nature of the conduct giving rise to the conviction. The mere fact of a criminal record does not afford a sufficient basis—in and of itself—to deny employment to a community college district applicant or terminate an existing employee. Rather, for most offenses, a district will have to show a nexus between the nature of the offense and the duties of the position. 1 In other words, in the case of an applicant, a district should be prepared to demonstrate why the particular offense makes the applicant unsuitable for the position. For current employees, a district will have to show that the offense giving rise to the conviction constitutes cause to terminate. For academic employees, this will mean satisfying one of the “for cause” criteria set out in Education Code section 87732 (e.g. immoral conduct, unprofessional conduct, etc.) For classified employees, cause would be demonstrated based upon the provisions of district policy in non-merit districts or by statute in merit districts. 2 The EEOC has issued an advisory on this issue. The advisory reaffirmed that an employer may not intentionally discriminate, on the basis of race or national origin, against individuals with similar criminal histories. However, according to the advisory, an employer’s racially/ethnically neutral policy (e.g., a “criminal record exclusion” that excludes all applicants from employment based on certain criminal convictions) will be deemed by the EEOC to have a disparate impact on race and national origin, and thus be subject to EEOC investigation. To defend such a policy, the employer will need to establish that the policy is “job related and consistent with business necessity.” According to the EEOC advisory, an employer will be deemed to meet this defense: (1) when the employer validates its policy using the EEOC’s Uniform Guidelines on Employee Selection Procedures ( see , 29 CFR Part 1607); or (2) when the employer develops a targeted screen that considers at a minimum the nature of the crime, the time elapsed since its commission, and the nature of the job for which the applicant is applying. However, for certain sex and drug offenses, discussed below, the Education Code establishes specific requirements and prohibitions regarding the employment of individuals charged and/or convicted of certain drug and sex offenses. Specifically, the Education Code prohibits the employment of academic and classified employees charged with these specified offenses, except under certain limited circumstances. Additionally, the Education Code permits—and in some instances requires—that employees charged with such offenses be placed in immediate unpaid leave.

Gov. Code section 12952 prohibits employers from making inquiries regarding applicants’ prior criminal convictions prior to a conditional offer of employment being made. However, section 12952 also excludes state or local agencies that are required by law to conduct a conviction history or background check of applicants for a particular position. 3 Community college districts must conduct criminal conviction checks in order to determine if the academic or classified applicant has been convicted of one of the Education Code enumerated sex or drug offenses. Given this, we believe that it is permissible for community college districts to make inquiries regarding convictions to academic or classified applicants prior to making a conditional offer of employment because the Education Code specifically requires it. We recommend, though, that those early inquiries are limited to whether the applicant has been convicted of one of the Education Code enumerate sex or drug offenses. Once the applicant qualifies through the pre-screen process, a community college district can inquire about felony convictions that are outside of the ones enumerated in the Education Code. However, the District needs to be careful and thorough when doing so. The EEOC has provided guidance regarding the consideration of criminal offenses for job applicants. Generally, employers are to apply the factors set forth in Green v. Missouri Pac. R. Co. (8th Cir. 1977) 549 F.2d 1158, 1159. The Green factors are: 1. The nature and gravity of the offense or conduct; 2. The time that has passed since the offense, conduct, or completion of the sentence; and 3. The nature of the job held. Once the District has covered three Green factors, it should also give the applicant an opportunity to explain the circumstances surrounding the conviction, what has transpired after the conviction, etc. After all of this, the District can then decide, based on the body of information it has, whether the prior conviction can be used as the basis for not offering the applicant a job. We recommend that as a matter of practice, the District notify an applicant in writing when criminal history information is used to deny an offer of employment. In doing so, the District should note which conviction(s) is being relied upon in making that decision, attach a copy of the conviction history report (if applicable) and provide five (5) business days for the applicant to respond to the notice before the decision in final. If the decision is made final, another written notice must be sent to the applicant. Doing this helps mitigate any potential claims that an applicant may have that the District improperly used prior conviction information during the hiring process.

B. D EFINING T ERMS

1. S EX O FFENSES

Education Code section 87010 defines “sex offenses” as:

 Any offense defined in Penal Code sections 261.5, 266, 267, 285, 286, 288, 288a, 647.6, or former 647a, 261(a)(2) and (3), 262(a)(1) and (2), or 647(a) and (d);  Any offense defined in former subdivision 5 of former Section 647 of the Penal Code repealed by Chapter 560 of the Statutes of 1961, or any offense defined in former subdivision 2 of former Section 311 of the Penal Code repealed by Chapter 2147 of the Statutes of 1961, if the offense defined in those sections was committed prior to September 15, 1961, to the same extent that such an offense committed prior to that date was a sex offense for the purposes of this section prior to September 15, 1961;  Any offense defined in Penal Code Section 314 committed on or after September 15, 1961;  Any offense defined in former subdivision 1 of former Penal Code Section 311 repealed by Chapter 2147 of the Statutes of 1961 committed on or after September 7, 1955, and prior to September 15, 1961;  Any offense involving lewd and lascivious conduct under Penal Code Section 272 committed on or after September 15, 1961;  Any offense involving lewd and lascivious conduct under former Section 702 of the Welfare and Institutions Code repealed by Chapter 1616 of the Statutes of 1961, if the offense was committed prior to September 15, 1961, to the same extent that such an offense committed prior to that date was a sex offense for the purposes of this section prior to September 15, 1961;  Any offense defined in Section 286 or 288a of the Penal Code prior to the effective date of the amendment of either section enacted at the 1975-76 Regular Session of the Legislature committed prior to the effective date of the amendment;

 Any attempt to commit any of the above-mentioned offenses; or

 Any offense committed or attempted in any other state that, if committed or attempted in this state, would have been punishable as one or more of the above-mentioned offenses.

2. D RUG O FFENSES

Education Code section 87011 defines “controlled substance offenses” as:

 Any offense in Health and Safety Code sections 11350-11355, 11366, 11368, 11377-11382, and 11550;  Any offense committed or attempted in any other state or against the laws of the United States which, if committed or attempted in this state, would have been punished as one or more of the above-mentioned offenses;  Any offense committed under former Health and Safety Code sections 11500-11503, 11557, 11715, and 11721; or

 Any attempt to commit any of the above-mentioned offenses.

C. A CADEMIC E MPLOYEES

1. C ONVICTION OF S EX O FFENSES OR C ONTROLLED S UBSTANCE O FFENSES Education Code section 87405 explicitly forbids community college districts governing boards from employing, or retaining in employment, persons who have been convicted of any sex or controlled substance offense, as defined in sections 87010 and 87011. However, section 87405 prohibits districts from denying employment to an applicant or employee solely on the basis of such conviction in three circumstances:

 where the conviction has been reversed and the person acquitted of the offense in a new trial, or the charges against him or her have been dismissed;  where the person has obtained or applied for a certificate of rehabilitation and pardon and the person’s probation has been terminated and the information or accusation dismissed; or  where the person has been rehabilitated for at least five years, or received a certificate of rehabilitation or pardon, or the accusation or information against the person has been dismissed and he or she has been released from all disabilities and penalties resulting from the offense.

These exceptions impact district’s rights and duties in two respects. First, it permits districts to hire or retain convicted applicants and employees who meet one of these criteria. Second, it prohibits rejecting or terminating an employee solely on the basis of the conviction, if the individual meets one of these criteria. This means that, where a district seeks to terminate an academic employee who was convicted of a sex or controlled substance offense, who has satisfied one of the above criteria, the district will have to establish statutory cause to terminate pursuant to section 87732.

Further, districts must be careful not to allow four years to elapse before taking final action to terminate a convicted employee. Doing so could result in being precluded from terminating the employee. For example, if a district were to wait and the employee obtained a certificate of rehabilitation and dismissal in the interim, the District could no longer rely solely upon the conviction to dismiss pursuant to Section 87405 and could not dismiss pursuant to Section 87675 (arbitration) and 87680 (administrative hearing) because the underlying conduct was more than four years old. 2. C OMPULSORY L EAVE OF A BSENCE UPON B EING C HARGED WITH S EX OR C ONTROLLED S UBSTANCE O FFENSE In conjunction with the mandatory termination of employees convicted of sex or controlled substance offenses, Education Code section 87736 permits districts to place academic employees charged with these offenses on a compulsory leave of absence, “for a period of time extending for not more than 10 days after the date of the entry of the judgment in the proceedings.” The compulsory leave may be extended beyond the 10 days by serving upon the employee, within the 10 days, notice that the employee will be dismissed in 30 days unless the employee demands a hearing pursuant to section 87737. Compulsory leave under this section is unpaid, unless the employee posts a bond. If the employee is subsequently acquitted, or the charges dismissed, the district must reimburse the employee for the cost of the bond (if posted) or pay the employee for the period of absence. The duty to reimburse does not apply, however, if the district seeks to reinstate the acquitted employee, and he or she fails or refuses to return to work. Districts should note that nothing in this section precludes serving the employee with a Notice of Intent to Dismiss if the employee is acquitted. Conviction of a crime requires proof “beyond a reasonable doubt.” Thus, a district may have sufficient evidence of conduct warranting dismissal (i.e. a preponderance of the evidence) although there was insufficient evidence to convict. However, the district would have to establish grounds to dismiss pursuant to section 87732. 3. A CCESS TO C RIMINAL R ECORDS Education Code section 87013 provides procedures for accessing the criminal records of academic employees. The section states that for academic employees that have not previously been employed by a California school or community college district, the governing board may within 10 working days of the date of employment, require the employee to have identification cards prepared by a local law enforcement agency. The cards include fingerprints and a description of the employee. Local law enforcement then forwards the cards to the Department of Justice, which prepares a criminal history of the employee if there is one. The Department of Justice provides the report to the local law enforcement agency, which excerpts all information regarding any convictions, and forwards that information to the district governing board.

4. E MPLOYMENT OF S EXUAL P SYCHOPATHS Related to the prohibition on employing individuals convicted of certain sex offenses, Education Code section 87406 prohibits employing or retaining in employment any academic employee, “who has been determined to be a sexual psychopath,” pursuant to Section 5500 of the Welfare and Institutions Code, or similar provisions of law of any other state. The section does not apply, however, if the determination is reversed and the person is determined not to be a sexual psychopath in a new proceeding, or the proceeding is dismissed. As noted above, the Education Code prohibits employment, solely on the grounds of a conviction, for only a particular crime. Where an academic employee has been convicted of an offense that does not require dismissal, then the district is not required to terminate or deny employment. If the district does not want to employ the individual, however, then it will have to establish a nexus between the nature of the offense and the employee’s job. For academic employees, this will require application of the “ Morrison Factors” to determine whether or not the conduct reasonably implicates the employee’s ability to perform his or her job duties. 4 1. C ONVICTION OF S EX O FFENSES OR C ONTROLLED S UBSTANCE O FFENSES As with academic employees, Education Code sections 88022 prohibits hiring or retaining any classified employee who has been convicted of a sex or controlled substance offense as defined in Education Code section 87010. Also similar to the provisions applying to academic employees, section 88022 provides limited circumstances under which the prohibition against employment does not apply. However, the circumstances are more narrowly drawn, and differentiate between controlled substance and sex offenses. For classified staff and applicants convicted of a sex offense , employment is not prohibited only where the “conviction is reversed and the person is acquitted of the offense in a new trial or the charges against him or her are dismissed.” A certificate of rehabilitation or pardon resulting in dismissal, or other proof of rehabilitation, does not overcome the conviction for the purposes of employment in the classified service. D. C LASSIFIED E MPLOYEES

For classified staff and applicants convicted of a controlled substance offense , Education Code sections 88022 provides the following bases on which a convicted employee may be employed:

 the conviction has been reversed and the person acquitted of the offense in a new trial or the charges against him or her are dismissed; or  the district governing board determines, from the evidence presented, that the person has been rehabilitated for at least five years.

In the latter case, the governing board has the authority to determine the type and manner of presentation of the evidence. The governing board’s determination as to whether or not the person has been rehabilitated is final.

2. E MPLOYMENT OF S EXUAL P SYCHOPATHS As with academic employees, Education Code section 88023 prohibits employing or retaining in employment any classified employee, “who has been determined to be a sexual psychopath,” pursuant to Section 5500 of the Welfare and Institutions Code, or similar provisions of law of any other state. The section does not apply, however, if the determination is reversed and the person is determined not to be a sexual psychopath in a new proceeding, or the proceeding is dismissed. 3. A CCESS TO C RIMINAL R ECORDS Education Code section 88024 provides procedures for accessing the criminal records of non- academic employees. This provision describes the same general process as 88024, with the preparation of identification cards by local law enforcement that are then forwarded to the Department of Justice for background checks. However, the procedure differs from that of academic employees (Education Code section 87013) in two key respects:

 The section states that for each person employed, or to be employed in a non-academic position, the governing board “ shall ” within 10 working days of the date of employment, require the employee to have identification cards prepared by a local law enforcement agency.  Rather than utilize the Department of Justice, a district with full-time equivalent students of at least 60,000 may process the cards itself.

Substitute and temporary employees, employed for less than a school year, may be exempted from these provisions. Further, the section does not apply to a district that has an average daily attendance of at least 400,000, or to a community college district wholly within a city and county, unless the governing board provides for adherence to this rule. 4. C OMPULSORY L EAVE OF A BSENCE UPON B EING C HARGED WITH S EX OR C ONTROLLED S UBSTANCE O FFENSE —M ERIT D ISTRICTS In conjunction with the mandatory termination of employees convicted of sex or controlled substance offenses, Education Code section 88123 permits merit districts to place non-academic employees charged with these offenses on a compulsory leave of absence, “for a period of time extending for not more than 10 days after the date of the entry of the judgment in the proceedings.” 5 The compulsory leave may be extended beyond the 10 days by serving upon the employee, within the 10 days, notice that the employee will be dismissed in 30 days unless the employee demands a hearing pursuant to section 87737. Compulsory leave under this section is unpaid, unless the employee posts a bond. If the employee is subsequently acquitted, or the charges dismissed, the district must reimburse the employee for the cost of the bond (if posted) or pay the employee for the period of absence. The duty to reimburse does not apply, however, if the district seeks to reinstate the acquitted employee, and he or she fails or refuses to return to work.

Districts should note that nothing in this section precludes serving the employee with a Notice of Intent to Dismiss if the employee is acquitted. Conviction of a crime requires proof “beyond a reasonable doubt.” Thus, a district may have sufficient evidence of conduct warranting dismissal (i.e. a preponderance of the evidence) although there was insufficient evidence to convict. However, the district would have to establish grounds to dismiss pursuant to section 87732. E. S TUDENT E MPLOYEES —87406.5 Education Code section 87406.5 provides that, notwithstanding any other provision of law to the contrary, a governing board may employ any student enrolled in the district who is an ex-convict or who is on parole, other than a person determined to be a sexual psychopath, to perform non- instructional duties. Student employees are not considered classified employees.

E MPLOYMENT OF T EMPORARY F ACULTY M EMBERS

Section 2

A. E MPLOYMENT OF A CADEMIC E MPLOYEES IN C ATEGORICALLY F UNDED P ROJECTS

1. I NTRODUCTION

Community college districts are expected to staff their academic positions with contract (probationary) and regular (tenured) employees. However, where an academic position is funded through a limited, finite funding source, the Education Code allows for greater flexibility in the terms of hiring and procedures for termination. Specifically, Education Code section 87470 authorizes community college governing boards to employ academic employees as temporary employees, if they serve in programs and projects under contract with public or private agencies, or other categorically funded projects of indeterminate duration. These academic employees, including academic administrators, may be employed under terms and conditions mutually agreed upon in writing by the employee and the governing board. 6 In order to ensure that the district retains the flexibility to release a “categorical” employee if the funding expires, the contract should clearly state the temporary status of the employee; that employment is at will, and that employment is contingent upon the continuation of funding. Further, it is essential that all contracts or other written notices of temporary employment; be provided to academic employees on or before the first date of paid service. Lack of clarity and/or notice of status after the first date of paid service may result in the employee acquiring probationary/contract status and for-cause termination rights.

2. L ENGTH OF E MPLOYMENT Pursuant to section 87470(a)(3), persons may be employed for periods that are less than a full college year, and may be terminated at the expiration of the contract or specially funded project without regard to other statutory requirements regarding the termination of contract or regular employees. 3. A DVANCEMENT T OWARD T ENURE Section 87470(a)(2) makes clear that, because categorically-funded faculty are temporary employees, their service may not be included in computing the service required as a prerequisite to acquiring tenure unless both of the following occur:

 The employee has served as a faculty member under this section for at least 75% of the number of days in the district’s regular schools; and  The employee is subsequently employed as a contract employee in a faculty position. 7

Where these criteria are met, the year prior to employment as a contract employee is counted, and the employee is considered to be in the second probationary year, rather than the first.

4. C ONTRACT E MPLOYEES R EASSIGNED TO C ATEGORICAL P ROGRAMS Section 87470 does not apply to a faculty member who is initially employed in the regular educational programs of the district as a contract employee, and then assigned to a categorically funded project or program. In other words, when a contract employee moves into a categorical program, he or she does not give up the rights and protections of probationary employment. The employee’s time in service will count toward tenure, and his or her service with the District (as opposed to service in the categorical position) may not be terminated without the due process rights afforded to contract employees. 5. E DUCATIONAL A DMINISTRATORS Similarly, the Education Code affords greater flexibility in the hiring and termination of categorically funded educational administrators, than is permitted for other educational administrators. Specifically, as set forth in section 87479(c), such administrators are excluded from the protections of Education Code section 87458, unless specifically provided for in the administrator’s contract. Thus, categorically funded educational administrators do not have return rights as probationary faculty upon expiration of their administrative assignments (unless so-stated in their contracts). 8

B. E MPLOYMENT OF A DJUNCT F ACULTY

1. O VERVIEW As noted above, community colleges are generally expected to staff their academic positions with contract and regular employees. In other words, tenure is the rule, and temporary employment the exception. Nevertheless, various scenarios create a need for temporary employment such as: district acquisition of categorical program funds (discussed above); temporary vacancies caused by an employee leave; and fluctuations in student enrollment. In these instances, districts are permitted to hire part-time, and/or temporary faculty (known variously as “adjunct,” “hourly,” “temporary,” or “part-time”). However, while such employment is permitted, the Education Code squarely places the burden on districts to demonstrate legally and factually that an employee is temporary. Further, in order to ensure that districts do not over-staff their campuses with temporary faculty, the Education Code establishes various restrictions on temporary employment. First, the Code places a limit on the number of adjunct faculty a district may hire. Second, the Code defines the types of service that may properly be provided by a temporary faculty member. Finally, the Code places limits on how long an employee can serve and remain a temporary (rather than contract or regular) employee. 2. L IMITATIONS ON THE N UMBER OF A DJUNCTS Education Code Sections 87482.6 and 87482.7 require community college districts to consider carefully staffing decisions to accomplish the legislative goal of providing at least 75% of credit hour instruction in community colleges by full-time instructors, while still maintaining program flexibility. 3. C LASSIFICATION OF A DJUNCTS The Education Code, sections 87475 et seq. , authorizes community college districts to hire temporary faculty members under certain conditions. Positions should not be classified as temporary unless the employment meets one of these enumerated conditions. 9 Moreover, districts must provide temporary faculty with written notice, at the time of employment that clearly indicates both the temporary nature of the employment, and the length of employment. If a district fails to provide this notice, the employee may be deemed a contract employee by operation of law. To avoid the automatic conversion of temporary faculty to contract or regular status, districts must provide clear written notice of the employee’s temporary status on or before the first date of paid service. 10 Additionally, the Education Code includes several protections and programs designed to encourage greater participation of, and protections for, adjunct faculty.

a. Faculty Employed to Fill Positions of Regularly Employed Persons Absent from Service—87478 Education Code section 87478 states that faculty employed to fill positions of regularly employed persons absent from service shall be classified as temporary employees. Regular employees on leave are entitled to return to their positions. Therefore, districts must be careful not to fill such temporary vacancies with contract employees. However, section 87478 also mandates that any person employed for one complete school year under this section must, if reemployed for the following school year in a “faculty position,” be classified as a contract employee—and have the previous year’s employment as a temporary employee deemed a year of contract employment. In other words, under this scenario the faculty member’s status upon being rehired is a second year probationary employee. b. Faculty Employed to Fill a Position for Which No Regularly Employed Person is Available—87478 Section 87478 also provides that, where no regular employee is available, any otherwise qualified person who consents to be employed in a temporary status, may be hired after September 1 of any school year. The district must demonstrate, to the satisfaction of the Board of Governors, that it was unable to acquire the services of a qualified regular employee. Again, if the employee serves for a complete school year and is rehired into a faculty position, the governing board must classify the employee as a contract employee, and count the prior year as a year of contract employment. c. Faculty Employed to Serve Day-to-Day During 1st 3 Months of School Term—87480 Section 87480 provides that districts must classify as temporary faculty who serve from day to day during the first three school months of any school term, to instruct temporary classes or to perform other duties which do not last longer than the first three school months of any school term, or to instruct in special day and evening classes for adults or in schools of migratory population for not more than four school months of any school term. However, if the classes or duties continue beyond three or four months, respectively, the employee must be re-classified as a contract employee. d. Faculty Employed in Case of Emergency—87480 Education Code section 87480 further authorizes district governing boards to make temporary emergency appointments for no more than 20 working days to prevent the stoppage of district business where no persons are immediately available for contract classification. Persons so appointed are deemed temporary employees employed to serve from day to day. Service by a person in such a temporary appointment does not count toward achieving status as a regular district employee.

e. Faculty Employed Due to Need for Additional Faculty During a Particular Semester, Quarter or Year –87481 Pursuant to section 87481, where a district has a specific need for additional faculty during a particular semester, quarter, or year because a faculty member has been granted leave for a semester, quarter, or year, or is experiencing long-term illness, a district may fill that need by employing qualified individuals as temporary faculty members for a complete school year. However, the number of persons so employed must be limited to the specific need identified, as determined by the governing board. Districts must be careful not to allow the number of temporary faculty hired on this basis to exceed the actual need. Failure to do so could result in having to “convert” temporary hires to contract employees. Section 87481 further provides that, if the employee served a complete school year and is rehired into a vacant faculty position (i.e. a position which is not filled by a regular or contract employee on leave) the employee must be classified as a contract employee, and his or her prior year count as a year of contract employment. In other words, as under section 87478, faculty rehired under this scenario enjoy the status of second-year probationary employees. Education Code section 87482 also permits a community college to employ qualified individuals as temporary faculty members for a complete school year (at least a complete school term), where there is a need for additional faculty during a particular semester or quarter because of the higher enrollment of students during that semester or quarter, or because a faculty member has been granted leave for a semester, quarter, or year, or is experiencing long-term illness. The salary for such employment shall be contractually fixed for the entire semester or quarter. Employment under this section cannot exceed more than two semesters or three quarters within any period of three consecutive years. This restriction works to enforce the requirement that the district is responding to unusual or unexpected higher enrollment. Where the higher enrollment becomes consistent, districts are expected to fill those positions with contract employees. If a temporary employee is hired under this section for more than two semesters or three quarters within a three year period, the employee will be deemed a contract employee. g. Faculty Employed Up to 67% of Full-Time Hours per Week—87482.5 Last—but certainly not least—Education Code Section 87482.5 provides that, “notwithstanding any other law,” faculty may be employed on a temporary basis if they are employed for, “not more than 67 percent of the hours per week considered a full-time assignment for regular employees having comparable duties.” In other words, so long as a temporary employee does not exceed this 67 percent threshold , he or she may be rehired indefinitely as a temporary employee. Note that this is in contrast to temporary hiring under section 87482—which provides that temporary employment may not exceed more than two semesters, or three quarters, within any three consecutive years. Thus, if a temporary employee stays within the 67 percent cap on weekly hours, he or she may be rehired indefinitely. However, if the hours exceed the 67 percent f. Faculty Employed Based upon Need for Additional Faculty During a Particular Semester or Quarter Due to Higher Enrollment—87482

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