H. B. 2517


(By Delegates Spencer, Mezzatesta,
Ennis and Givens)

[Introduced January 14, 1998; referred to the
Committee on Education.]



A BILL to amend and reenact section eight-b, article four, chapter eighteen-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section eight-g, article four of said chapter, all relating to seniority rights for school service personnel and permitting autism mentors, paraprofessionals and sign language specialists to remain employed as a multiclassified employee accruing seniority in each classification when there is a reduction in force for the classification category of an aide.

Be it enacted by the Legislature of West Virginia:
That section eight-b, article four, chapter eighteen-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section eight-g, article four of said chapter 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 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.
Qualifications shall mean that the applicant holds a classification title in his or her category of employment as provided in this section and must be given first opportunity for promotion and filling vacancies. Other employees then must 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 board must show valid cause why an employee with the most seniority is not promoted or employed in the position for which he or she applies. Applicants shall be considered in the following order:
(1) Regularly employed service personnel;
(2) Service personnel whose employment has been discontinued in accordance with this section;
(3) Professional personnel who held temporary service personnel jobs or positions prior to the ninth day of June, one thousand nine hundred eighty-two, and who apply only for such temporary jobs or positions;
(4) Substitute service personnel; and
(5) New service personnel.
The county board may not prohibit a service employee from retaining or continuing his or her employment in any positions or jobs held prior to the effective date of this section and thereafter.
A promotion shall be defined as any change in his or her employment that the employee deems to improve his or her working circumstance within his or her classification category of employment and shall include 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. Each class title listed in section eight of this article shall be 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. The cafeteria manager class title shall be included in the same classification category as cooks. The executive secretary class title shall be included in the same classification category as secretaries. Paraprofessional, autism mentor and braille or sign language specialist class titles shall be included in the same classification category as aides.
For purposes of determining seniority under this section an employee's seniority begins on the date that he or she enters into his or her assigned duties.
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: An employee 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: Provided, That an alternative procedure for making extra-duty assignments within a particular classification category of employment may be utilized 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. 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.
Boards shall be required to post and date notices of all job vacancies of established existing or newly created positions in conspicuous working places for all school service employees to observe for at least five working days. The notice of the job vacancies shall include the job description, the period of employment, the amount of pay and any benefits and other information that is helpful to the employees to understand the particulars of the job. 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.
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.
The seniority of any service personnel 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 an employee has been employed in one or more classifications, the seniority accrued in each previous classification shall be retained by the employee.
If a county board is required to reduce the number of employees within a particular job classification, 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: Provided, That if there is no job vacancy for employment within the classification or grades of classification, he or she 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.
If two or more employees accumulate identical seniority, the priority shall be determined by a random selection system established by the employees and approved by the county board.
All employees 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.
Employees placed upon the preferred list shall be recalled to any position openings by the county board within the classification(s), where they had previously been employed, or to any lateral position for which the employee is qualified or to a lateral area for which an employee has certification and/or licensure.
Employees on the preferred recall list shall may not forfeit their right to recall by the county board if compelling reasons require an employee to refuse an offer of reemployment by the county board.
The county board shall notify all employees on the preferred recall list of all position openings that from time to time exist. The notice shall be sent by certified mail to the last known address of the employee; it is the duty of each such employee to notify the county board of any change in the address of the employee.
No position openings may be filled by the county board, whether temporary or permanent, until all employees on the preferred recall list have been properly notified of existing vacancies and have been given an opportunity to accept reemployment.
Any 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. Further, employees 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. Further, the board is liable to any party prevailing against the board for any court reporter costs including copies of transcripts.
§18A-4-8g. Determination of seniority for service personnel.
The seniority for service personnel shall be determined in the following manner:
Seniority accumulation for a regular school service employee begins on the date the employee enters upon regular employment duties pursuant to a contract as provided in section five, article two of this chapter and continues until the employee's employment as a regular employee is severed with the county board. Seniority shall may not cease to accumulate when an employee is absent without pay as authorized by the county board or the absence is due to illness or other reasons over which the employee has no control as authorized by the county board. Seniority accumulation for a substitute employee shall begin upon the date the employee enters upon the duties of a substitute as provided in section fifteen of this article, after executing with the board a contract of employment as provided in section five, article two of this chapter. The seniority of a substitute employee, once established, shall continue until such the employee enters into the duties of a regular employment contract as provided in section five, article two of this chapter or employment as a substitute with the county board is severed. Seniority of a regular or substitute employee shall continue to accumulate except during the time when an employee is willfully absent from employment duties because of a concerted work stoppage or strike or is suspended without pay.
For all purposes including the filling of vacancies and reduction in force, seniority shall be accumulated within particular classification categories of employment as those classification categories are referred to in section eight-e of this article: Provided, That when implementing a reduction in force, an employee with the least seniority within a particular classification category shall be properly released and placed on the preferred recall list. The particular classification title held by an employee within the classification category shall may not be taken into consideration when implementing a reduction in force.
On or before the first day of September and the fifteenth day of January of each school year, county boards shall post at each county school or working station the current seniority list or lists of each school service classification. Each list shall contain the name of each regularly employed school service personnel employed in each classification and the date that each employee began performing his or her assigned duties in each classification. Current seniority lists of substitute school service personnel shall be available to employees upon request at the county board office.
The seniority of an employee who transfers out of a class title or classification category of employment and subsequently returns to that class title or classification category of employment shall be calculated as follows:
The county board shall establish the number of calendar days between the date the employee left the class title or category of employment in question and the date of return to the class title or classification category of employment. This number of days shall be added to the employee's initial seniority date to establish a new beginning seniority date within the class title or classification category. The employee shall then be considered as having held uninterrupted service within the class title or classification category from the newly established seniority date. The seniority of an employee who has had a break in the accumulation of seniority as a result of being willfully absent from employment duties because of a concerted work stoppage or strike shall be calculated in the same manner.
A substitute school service employee shall acquire regular employment status and seniority if said the employee receives a position pursuant to subsections (2) and (5), section fifteen of this article: Provided, That a substitute employee who accumulates regular employee seniority while holding a position acquired pursuant to said subsections shall simultaneously accumulate substitute seniority. County boards shall may not be prohibited from providing any benefits of regular employment for substitute employees, but the benefits shall may not include regular employee status and seniority.
If two or more employees accumulate identical seniority, the priority shall be determined by a random selection system established by the employees and approved by the county board. A board shall conduct the random selection within thirty days upon the employees establishing an identical seniority date. All employees with an identical seniority date within the same class title or classification category shall participate in the random selection. As long as the affected employees hold identical seniority within the same classification category, the initial random selection conducted by the board shall be permanent for the duration of the employment within the same classification category of the employees by the board. This random selection priority shall apply to the filling of vacancies and to the reduction in force of school service personnel: Provided, That if another employee or employees subsequently acquire seniority identical to the employees involved in the original random selection, a second random selection shall be held within thirty days to determine the seniority ranking of the new employee or employees within the group. The priority between the employees who participated in the original random selection shall remain the same. The second random selection will be performed by placing numbered pieces of paper equal to the number of employees with identical seniority in a container. The employees who were not involved in the original random selection will draw a number from the container which will determine their seniority within the group as a whole. This process will be repeated if additional employees subsequently acquire identical seniority. The same process will be utilized if additional employees are subsequently discovered to have the same seniority as the original group of employees but who did not participate in the original random selection through oversight or mistake.
Service personnel who are employed in a classification category of employment at the time when a vacancy is posted in the same classification category of employment shall be given first opportunity to fill the vacancy.
Seniority acquired as a substitute and as a regular employee shall be calculated separately and shall may not be combined for any purpose. Seniority acquired within different classification categories shall be calculated separately: Provided, That when a school service employee makes application for a position outside of the classification category currently held, if the vacancy is not filled by an applicant within the classification category of the vacancy, the applicant shall combine all regular employment seniority acquired for the purposes of bidding on the position.
School service personnel who hold multiclassification titles shall accrue seniority in each classification category of employment which said the employee holds and shall be considered an employee of each classification category contained within his or her multiclassification title. Multiclassified employees shall be subject to reduction in force in any category of employment contained within their multiclassification title based upon the seniority accumulated within said the category of employment: Provided, That if a multiclassified employee is reduced in force in one classification category, said the employee shall retain employment in any of the other classification categories that he or she holds within his or her multiclassification title. In such a case, the county board shall delete the appropriate classification title or classification category from the contract of the multiclassified employee: Provided, however, That if an autism mentor, braille or sign language specialist, or paraprofessional, who are also multiclassified as an aide, pursuant to section eight, article four, chapter eighteen-a, are reduced in force in the category of an aide, the aide classification title will not be deleted and such multiclassification employees shall continue to accumulate seniority in each classification category.
When applying to fill a vacancy outside the classification categories held by the multiclassified employee, seniority acquired simultaneously in different classification categories shall be calculated as if accrued in one classification category only.
The seniority conferred in this section applies retroactively to all affected school service personnel, but the rights incidental thereto shall commence as of the effective date of this section.


NOTE: The purpose of this bill is to permit autism mentors, paraprofessionals and sign language specialists to remain employed as a multiclassified employee accruing seniority in each classification when there is a reduction in force for the classification category of an aide.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.