H. B. 2167
(By Delegates Fleischauer and Marshall)
[Introduced January 12, 2011; referred to the
Committee on Education then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-9A-5a; and to amend and reenact §18A-4-15 of said code, all relating to the hiring of substitute service personnel by county school boards who can be used on a daily basis but do not count against the yearly state aid fund.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §18-9A-5a; and that §18A-4-15 of said code be amended and reenacted, all to read as follows:
CHAPTER 18. EDUCATION.
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-5a. Hiring of substitute service personnel on full-time basis.
The county superintendent, subject to the approval of the county board, may hire three service personnel workers from the substitute list, based on seniority, on a full-time basis as itinerants to meet the day-to-day need for substitutes in the service personnel areas. These three itinerants are not counted against the county in the calculation of the school aid formula.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.
§18A-4-15. Employment of service personnel substitutes.
(a) If the full-time substitutes hired in section five-a, article nine-a, chapter eighteen of this code are insufficient to meet the need for substitute service personnel on any given day the provisions of this section are to be followed.
(a) (b) The county board shall employ and the county superintendent, subject to the approval of the county board, shall assign substitute service personnel on the basis of seniority to perform any of the following duties:
(1) To fill the temporary absence of another service employee;
(2) To fill the position of a regular service person as follows:
(A) If the regular service person requests a leave of absence from the county board in writing and is granted the leave in writing by the county board; or
(B) If the regular service person is on workers’ compensation and absent.
(C) If an absence pursuant to paragraph (A) or (B) of this subdivision is to extend beyond thirty working days, the county board shall post the position of the absent employee under the procedures set forth in section eight-b of this article. If a substitute service person is employed to fill the position of the absent employee and is employed in the position for twenty or more working days, the substitute service person:
(i) Acquires regular employment status with the exception of regular employee job bidding rights;
(ii) Does not accrue regular seniority; and
(iii) Is accorded all other rights, privileges and benefits pertaining to the position until the regular employee returns to the position or ceases to be employed by the county board;
(D) If a regular or substitute employee fills a vacancy that is related in any manner to a leave of absence or the absence of an employee on workers’ compensation as provided in this section, upon termination of the absence the employee shall be returned to his or her original position or status;
(E) A service person may not be:
(i) Required to request or to take a leave of absence; or
(ii) Deprived of any right or privilege of regular employment status for refusal to request or failure to take a leave of absence;
(3) To perform the service of a service person who is authorized to be absent from duties without loss of pay;
(4) To temporarily fill a vacancy in a permanent position caused by severance of employment by the resignation, transfer, retirement, permanent disability, dismissal pursuant to section eight, article two of this chapter, or death of the regular service person who had been assigned to the position. Within twenty working days from the commencement of the vacancy, the county board shall fill the vacancy under the procedures set forth in section eight-b of this article and section five, article two of this chapter. The person hired to fill the vacancy shall have and be accorded all rights, privileges and benefits pertaining to the position;
(5) To fill the vacancy created by a regular employee's suspension.
(A) If the suspension is for more than thirty working days, the county board shall post the position of the suspended employee under the procedures set forth in section eight-b of this article.
(B) If a substitute service person is employed to fill the suspended employee’s position, the substitute service person:
(i) Acquires regular employment status with the exception of regular employee job-bidding rights;
(ii) Does not accrue regular seniority; and
(iii) Is accorded all other rights, privileges and benefits pertaining to the position until the termination by the county board becomes final or the suspended employee is returned to employment.
(C) If the suspended employee is not returned to his or her job, the county board shall fill the vacancy under the procedures set forth in section eight-b of this article and section five, article two of this chapter; and
(6) To fill temporarily a vacancy in a newly created position prior to employing a service person on a regular basis pursuant to section eight-b of this article.
(b) (c) Service personnel substitutes shall be assigned in the following manner:
(1) The substitute with the greatest length of service time in the vacant category of employment has priority in accepting the assignment throughout the period of the regular service person’s absence or until the vacancy is filled on a regular basis pursuant to section eight-b of this article. Length of service time is calculated from the date a substitute service person begins assigned duties as a substitute in a particular category of employment.
(2) All service personnel substitutes are employed on a rotating basis according to their lengths of service time until each substitute has had an opportunity to perform similar assignments.
(3) Any regular service person employed in the same building or working station and the same classification category of employment as the absent employee shall be given the first opportunity to fill the position of the absent employee on a rotating and seniority basis. In such case the regular service person’s position is filled by a substitute service person. A regular service person assigned to fill the position of an absent employee has the opportunity to hold that position throughout the absence. For the purpose of this section only, all regularly employed school bus operators are considered to be employed within the same building or working station.
(c) (d) The county board shall return a regular school service person to the same position held prior to any approved leave of absence or period of recovery from injury or illness. The school service person:
(1) Retains all rights, privileges and benefits which had accrued at the time of the absence or accrued under any other provision of law during the absence; and
(2) Has all rights, privileges and benefits generally accorded school service personnel at the time of return to work.
(d) (e) The salary of a substitute service person is determined:
(1) Based upon his or her years of employment as defined in section eight of this article;
(2) As provided in the state minimum pay scale set forth in section eight-a of this article; and
(3) In accordance with the salary schedule of persons regularly employed in the same position in the county in which he or she is employed.
(e) (f) A substitute service person shall execute a written contract with the county board pursuant to section five, article two of this chapter, prior to beginning assigned duties.
(f) (g) The following method shall be used to establish a fair, equitable and uniform system for assigning service personnel substitutes to their duties for the first time:
(1) The initial order of assigning newly-employed substitutes is determined by a random selection system established by the affected substitute employees and approved by the county board; and
(2) The initial order is effective only until the substitute service personnel have begun their duties for the first time.
(g) (h) A substitute service person who has worked thirty days for a school system has all rights pertaining to suspension, dismissal and contract renewal as are granted to regular service personnel in sections six, seven, eight and eight-a, article two of this chapter.
NOTE: The purpose of this bill is to give county school superintendents more flexibility and ease in placing service personnel workers in positions of need on a day-to-day basis.
§18-9A-5a is new; therefore, it has been completely underscored.
Stike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.