Committee Substitute
for
H. B. 3146
(By Delegates Moye, Perry, Shaver, Caputo,
Fragale and Rodighiero)
[Originating in the Committee on Education.]
[March 26, 2009]
A BILL to amend and reenact §18A-4-8b of the Code of West Virginia,
1931, as amended, relating to seniority rights for school
service personnel; revising criteria for consideration of
applicants; and providing for assignment based on seniority in
certain circumstances in certain classifications.
Be it enacted by the Legislature of West Virginia:
That §18A-4-8b of the Code of West Virginia, 1931, as amended,
be amended and reenacted 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 that the applicant holds a
classification title in his or her category of employment as
provided in this section and shall be 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 as defined in section eight of this article, that relates to
the promotion or vacancy. 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)
Professional personnel who held temporary service personnel
jobs or positions prior to June 9, one thousand nine hundred
eighty-two, and who apply only for these temporary jobs or
positions 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;
(4) (5) Substitute service personnel
who hold a classification
title within the classification category of the vacancy; and
(6) Substitute service personnel who do not hold a
classification title within the classification category of the
vacancy; and
(5) (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 is defined as 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 shall be 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 aides to particular positions within a
school shall be based on seniority within the aide classification
category if the aide is qualified for the position.
(4) Assignment of custodians to work shifts within a school or
work site shall be based on seniority within the custodian
classification category.
(e) For purposes of determining seniority under this section
an 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 assignments"
are defined as irregular jobs that occur 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 shall be made in the following manner:
(A) A service person with the greatest length of service time
in a particular category of employment shall be 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 such employees have had an opportunity to
perform similar assignments. The cycle then shall be 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 established existing or newly created positions in
conspicuous places for all school service personnel to observe for
at least five working days.
(1) Posting locations shall 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 so as 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 established 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 any service person shall be 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, when a service person has been employed
in one or more classifications, the seniority accrued in each
previous classification is retained by the employee.
(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 shall be 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
shall be employed in any other job classification which he or she
previously held with the county board if there is a vacancy and
shall retain any seniority accrued in the job classification or
grade of classification.
(k) Prior to August 1, after a reduction in force or transfer
is approved:
(1) If the county board in its sole and exclusive judgment
determines that the reason for any particular reduction in force or
transfer no longer exists, the board 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) Within five days of being notified, the affected employee
shall notify the county board of his or her intent to return to the
former position of employment or the right of restoration to the
former position terminates.
(3) The county board shall 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 shall be 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 shall be 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 list shall be
recalled to any position openings by the county board within the
classification(s) where he or she had previously been employed, or
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 shall 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 shall be accorded preferred recall status on July 1 of the
succeeding school year if the 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.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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