Human Resources Academy II for Community College Districts

a. Avoiding the “Kavanaugh Temp” Scenario In Kavanaugh v. West Sonoma County Union High School District , 61 the plaintiff successfully challenged her classification as a temporary employee. Although this case does not involve a layoff, it disrupted layoffs for hundreds of districts in the year it came down, because layoff rights turn on classification. In the case, the court addressed the meaning of Education Code section 44916 (language which parallels Section 87477 for community college districts), requiring a classification be made “at the time of employment,” and that failure to do so results in automatic classification as a probationary employee. The court held that “at the time of employment” means that classification must occur on or before the first date of paid service. In Kavanaugh , the district’s classification of plaintiff as “temporary” two weeks after her first date of paid service was found to be untimely. Therefore, by operation of law pursuant to section 44916, and by extension section 87477, plaintiff was held to be a probationary employee, not a temporary employee. 62 This strict interpretation of section 87477; makes it essential that districts notify employees of their temporary classification before they begin paid service. In constructing seniority lists, districts should review all temporary faculty contracts and compare them to the first date of paid service. Any “temporary” employee who did not receive notice of his or her classification on or before the first day of paid service should be reclassified as a probationary employee and included on the seniority list. b. Avoiding Conversion of “Excess” Temporary Employees Temporary employees can inadvertently acquire probationary status if the number of temporary employees teaching more than 67 percent of a full-time assignment, exceeds the number of regular employees on leave of absence. 63 Thus, prior to constructing or updating seniority lists, districts should compare the number of temporary employees with the number of regular employees on leave to make sure that the district is not required to convert some of its temporary employees to probationary status. 64 3. E DUCATIONAL A DMINISTRATORS Educational administrators should be included on seniority lists in two contexts: (1) those who have attained tenure pursuant to Education Code section 87458.1; (2) and those who are entitled to reassignment to the classroom pursuant to sections 87458 and 87459. C. O RDER OF THE L IST : C ALCULATING F ACULTY S ENIORITY Once a district has identified all its probationary and permanent employees–i.e. all those employees who must be placed on the seniority list–the next task it faces is organizing the list in order of seniority. An academic employee’s seniority is determined by his or her first date of paid service in a probationary position. 65 Unfortunately, ordering the list is not as straightforward as it sounds. For example, districts must be careful not to equate the “first day of classes” with the “first date of paid service.” If, for example, a faculty member attends, and is paid, for flex days prior to the start of the academic year, those days probably count toward seniority. Additional rules may also apply:

Human Resources Academy II for Community College Districts ©2019 (c) Liebert Cassidy Whitmore 39