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.