ENROLLED
Committee Substitute
for
H. B. 3146
(By Delegates Moye, Perry, Shaver, Caputo,
Fragale and Rodighiero)
[Passed April 11, 2009; in effect ninety days from passage.]
AN ACT
to
amend and reenact
§18A-4-8b and
§18A-4-17
the Code of
West Virginia, 1931, as amended
, all relating to seniority
rights for school service personnel; revising criteria for
consideration of applicants; providing for assignment based on
seniority in certain circumstances in certain classifications;
specifying certain rights, privileges and benefits of certain
professional and service personnel providing middle college
services in public community and technical colleges;
and
making technical changes
.
Be it enacted by the Legislature of West Virginia:
That §18A-4-8b and
§18A-4-17
of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.
§18A-4-8b. Seniority rights for school service personnel.
(a) A county board shall make decisions affecting promotions
and the filling of any service personnel positions of employment or
jobs occurring throughout the school year that are to be performed
by service personnel as provided in section eight of this article, on the basis of seniority, qualifications and evaluation of past
service.
(b) Qualifications means the applicant holds a classification
title in his or her category of employment as provided in this
section and is given first opportunity for promotion and filling
vacancies. Other employees then shall be considered and shall
qualify by meeting the definition of the job title that relates to
the promotion or vacancy, as defined in section eight of this
article. If requested by the employee, the county board shall show
valid cause why a service person with the most seniority is not
promoted or employed in the position for which he or she applies.
Qualified applicants shall be considered in the following order:
(1) Regularly employed service personnel who hold a
classification title within the classification category of the
vacancy;
(2) Service personnel who have held a classification title
within the classification category of the vacancy whose employment
has been discontinued in accordance with this section;
(3) Regularly employed service personnel who do not hold a
classification title within the classification category of vacancy;
(4) Service personnel who have not held a classification title
within the classification category of the vacancy and whose
employment has been discontinued in accordance with this section;
(5) Substitute service personnel who hold a classification
title within the classification category of the vacancy;
(6) Substitute service personnel who do not hold a classification title within the classification category of the
vacancy; and
(7) New service personnel.
(c) The county board may not prohibit a service person from
retaining or continuing his or her employment in any positions or
jobs held prior to the effective date of this section and
thereafter.
(d) A promotion means any change in employment that the
service person considers to improve his or her working circumstance
within the classification category of employment.
(1) A promotion includes a transfer to another classification
category or place of employment if the position is not filled by an
employee who holds a title within that classification category of
employment.
(2) Each class title listed in section eight of this article
is considered a separate classification category of employment for
service personnel, except for those class titles having Roman
numeral designations, which are considered a single classification
of employment:
(A) The cafeteria manager class title is included in the same
classification category as cooks;
(B) The executive secretary class title is included in the
same classification category as secretaries;
(C) Paraprofessional, autism mentor and braille or sign
language specialist class titles are included in the same
classification category as aides; and
(D) The mechanic assistant and chief mechanic class titles are
included in the same classification category as mechanics.
(3) The assignment of an aide to a particular position within
a school is based on seniority within the aide classification
category if the aide is qualified for the position.
(4) Assignment of a custodian to work shifts in a school or
work site is based on seniority within the custodian classification
category.
(e) For purposes of determining seniority under this section
a service person's seniority begins on the date that he or she
enters into the assigned duties.
(f) Extra-duty assignments. --
(1) For the purpose of this section, "extra-duty assignment"
means an irregular job that occurs periodically or occasionally
such as, but not limited to, field trips, athletic events, proms,
banquets and band festival trips.
(2) Notwithstanding any other provisions of this chapter to
the contrary, decisions affecting service personnel with respect to
extra-duty assignments are made in the following manner:
(A) A service person with the greatest length of service time
in a particular category of employment is given priority in
accepting extra duty assignments, followed by other fellow
employees on a rotating basis according to the length of their
service time until all employees have had an opportunity to perform
similar assignments. The cycle then is repeated.
(B) An alternative procedure for making extra-duty assignments within a particular classification category of employment may be
used if the alternative procedure is approved both by the county
board and by an affirmative vote of two thirds of the employees
within that classification category of employment.
(g) County boards shall post and date notices of all job
vacancies of existing or newly created positions in conspicuous
places for all school service personnel to observe for at least
five working days.
(1) Posting locations include any website maintained by or
available for the use of the county board.
(2) Notice of a job vacancy shall include the job description,
the period of employment, the amount of pay and any benefits and
other information that is helpful to prospective applicants to
understand the particulars of the job. Job postings for vacancies
made pursuant to this section shall be written to ensure that the
largest possible pool of qualified applicants may apply. Job
postings may not require criteria which are not necessary for the
successful performance of the job and may not be written with the
intent to favor a specific applicant.
(3) After the five-day minimum posting period, all vacancies
shall be filled within twenty working days from the posting date
notice of any job vacancies of existing or newly created positions.
(4) The county board shall notify any person who has applied
for a job posted pursuant to this section of the status of his or
her application as soon as possible after the county board makes a
hiring decision regarding the posted position.
(h) All decisions by county boards concerning reduction in
work force of service personnel shall be made on the basis of
seniority, as provided in this section.
(i) The seniority of a service person is determined on the
basis of the length of time the employee has been employed by the
county board within a particular job classification. For the
purpose of establishing seniority for a preferred recall list as
provided in this section, a service person who has been employed in
one or more classifications retains the seniority accrued in each
previous classification.
(j) If a county board is required to reduce the number of
service personnel within a particular job classification, the
following conditions apply:
(1) The employee with the least amount of seniority within
that classification or grades of classification is properly
released and employed in a different grade of that classification
if there is a job vacancy;
(2) If there is no job vacancy for employment within that
classification or grades of classification, the service person is
employed in any other job classification which he or she previously
held with the county board if there is a vacancy and retains any
seniority accrued in the job classification or grade of
classification.
(k) After a reduction in force or transfer is approved, but
prior to August 1, a county board in its sole and exclusive
judgment may determine that the reason for any particular reduction in force or transfer no longer exists.
(1) If the board makes this determination, it shall rescind
the reduction in force or transfer and notify the affected employee
in writing of the right to be restored to his or her former
position of employment.
(2) The affected employee shall notify the county board of his
or her intent to return to the former position of employment within
five days of being notified or lose the right to be restored to the
former position.
(3) The county board may not rescind the reduction in force of
an employee until all service personnel with more seniority in the
classification category on the preferred recall list have been
offered the opportunity for recall to regular employment as
provided in this section.
(4) If there are insufficient vacant positions to permit
reemployment of all more senior employees on the preferred recall
list within the classification category of the service person who
was subject to reduction in force, the position of the released
service person shall be posted and filled in accordance with this
section.
(l) If two or more service persons accumulate identical
seniority, the priority is determined by a random selection system
established by the employees and approved by the county board.
(m) All service personnel whose seniority with the county
board is insufficient to allow their retention by the county board
during a reduction in work force are placed upon a preferred recall list and shall be recalled to employment by the county board on the
basis of seniority.
(n) A service person placed upon the preferred recall list
shall be recalled to any position openings by the county board
within the classification(s) where he or she had previously been
employed, to any lateral position for which the service person is
qualified or to a lateral area for which a service person has
certification and/or licensure.
(o) A service person on the preferred recall list does not
forfeit the right to recall by the county board if compelling
reasons require him or her to refuse an offer of reemployment by
the county board.
(p) The county board shall notify all service personnel on the
preferred recall list of all position openings that exist from time
to time. The notice shall be sent by certified mail to the last
known address of the service person. Each service person shall
notify the county board of any change of address.
(q) No position openings may be filled by the county board,
whether temporary or permanent, until all service personnel on the
preferred recall list have been properly notified of existing
vacancies and have been given an opportunity to accept
reemployment.
(r) A service person released from employment for lack of need
as provided in sections six and eight-a, article two of this
chapter is accorded preferred recall status on July 1 of the
succeeding school year if he or she has not been reemployed as a regular employee.
(s) A county board failing to comply with the provisions of
this article may be compelled to do so by mandamus and is liable to
any party prevailing against the board for court costs and the
prevailing party's reasonable attorney fee, as determined and
established by the court.
(1) A service person denied promotion or employment in
violation of this section shall be awarded the job, pay and any
applicable benefits retroactively to the date of the violation and
shall be paid entirely from local funds.
(2) The county board is liable to any party prevailing against
the board for any court reporter costs including copies of
transcripts.
§18A-4-17. Health and other facility employee salaries.
(a) The minimum salary scale for professional personnel and
service personnel employed by the state department of education to
provide education and support services to residents of state
department of health and human resources facilities, corrections
facilities providing services to juvenile and youthful offenders,
in the West Virginia schools for the deaf and the blind and in
public community and technical colleges providing middle college
services is the same as set forth in sections two, three and eight-
a of this article. Additionally, those personnel shall receive the
equivalent of salary supplements paid to professional and service
personnel employed by the county board in the county wherein each
facility is located, as set forth in sections five-a and five-b of this article. Professional personnel and service personnel in
these facilities who earn advanced classification of training after
the effective date of this section shall be paid the advanced
salary from the date the classification of training is earned. The
professional personnel shall be certified, licensed or trained, and
shall meet other eligibility classifications as may be required by
the provisions of this chapter and by state board regulations for
comparable instructional personnel who are employed by county
boards. The professional personnel shall be paid at the equivalent
rate of pay of teachers as set forth in section two of this
article, but outside the public support plan, plus the equivalent
of the salary supplement paid to teachers employed by the county
board in the county in which each facility is located, as set forth
in section five-a of this article.
(b) Professional personnel employed by the department to
provide education services to residents in state department of
health and human resources facilities, corrections facilities
providing services to juvenile and youthful offenders, in the West
Virginia schools for the deaf and the blind or in public community
and technical colleges providing middle college services are
afforded all the rights, privileges and benefits established for
the professional personnel under this article, subject to the
following:
(1) The benefits apply only within the facility at which the
professional personnel are employed;
(2) The benefits exclude salaries unless explicitly provided for under this or other sections of this article; and
(3) Seniority for the professional personnel is determined on
the basis of the length of time the employee has been
professionally employed at the facility, regardless of which state
agency was the actual employer.
(c) Professional personnel and service personnel employed by
the department of education to provide education and support
services to residents in state department of health and human
resources facilities, corrections facilities providing services to
juvenile and youthful offenders, the West Virginia schools for the
deaf and the blind and in public community and technical colleges
providing middle college services are state employees.
(d) Additional seniority provisions.
(1) Notwithstanding any other provision of this section to the
contrary, professional and service personnel employed in an
educational facility operated by the West Virginia department of
education accrue seniority at that facility on the basis of the
length of time the employee has been employed at the facility.
Professional and service personnel whose employment at the facility
was preceded immediately by employment with the county board
previously providing education services at the facility or whose
employment contract was with the county board previously providing
education services at the facility:
(A) Retains any seniority accrued during employment by the
county board;
(B) Accrues seniority as a regular employee with the county board during employment at the facility;
(C) Attains continuing contract status in accordance with
section two, article two, chapter eighteen-a of this code with both
the county and the facility if the sum of the years employed by the
county and the facility equals the statutory number required for
continuing contract status; and
(D) Retains and continues to accrue county and facility
seniority in the event of reemployment by the county as a result of
direct transfer from the facility or recall from the preferred
list.
(2) Reductions in work force in the facility or employment by
the facility or county board are made in accordance with the
provisions of sections seven-a and eight-b of this chapter. Only
years of employment within the facility are considered for purposes
of reduction in force within the facility.
(3) The seniority conferred in this section applies
retroactively to all affected professional and service personnel,
but the rights incidental to the seniority commence on the
effective date of this section.
(4) Amendments made to this section during the 2009 regular
session of the Legislature do not abrogate
any rights, privileges
or benefits bestowed under previous enactments of this section.
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