Act 55: Major Changes in the Rules for Furloughs of School ... · Act 55 of 2017 On November 6, 2017, Act 55 of 2017, which amended the Pennsylvania School Code of 1949, became law

Act 55: Major Changes in the Rules for Furloughs of School Employees

Legal and Labor Relations Hazards & Pitfalls

IRA WEISS, ESQ.

© WBK LEGAL 2017 THIS PRESENTATION IS INFORMATIONAL ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE.

1

Act 55 of 2017

On November 6, 2017, Act 55 of 2017, which amended the Pennsylvania School Code of 1949, became law.

Act 55 permits professional employees to be furloughed for purely economic reasons AND changes the order in which professional employees are to be furloughed.

These changes affect school districts, intermediate units and vocational-technical schools.


2

Furloughs of Professional Employees: HistoryPrior to the enactment of Act 55, Section 1124 of the School Code provided four (4) specific reasons for which a school district may suspend or furlough a professional employee.

1. Substantial decrease in student enrollment

2. Curtailment or alteration of the educational program

3. Consolidation of schools within a single district or due to the merger of school districts

4. Establishment of new school districts as a result of reorganization of administrative units.

24 P.S. §11-1124(a)(1)-(4).


3

Furloughs of Professional Employees: HistoryIn Warwick Bd. Of Sch. Directors v. Theros, the PA Supreme Court affirmed the Commonwealth Court’s decision which held that the four (4) reasons enumerated in Section 1124 were the only reasons for which a professional employee could be furloughed. 494 Pa. 108, 430 A.2d 268 (1981).

However, even if the primary reason for the furlough was to save money, the furlough was permissible, so long as one of the enumerated reasons was present. Platko v. Laurel Highlands Sch. Dist., 49 Pa.Cmwlth. 210, 410 A.2d 960 (1980).


4

Furloughs of Professional Employees: Act 55Act 55 added a provision to Section 1124(a) of the School Codewhich states that a school board may suspend the necessary numberof professional employees for, “economic reasons that require areduction in professional employes.” 24 P.S. §11-1124(a)(5).


5

Furloughs of Professional Employees: Act 55

School districts may not use an employee’s compensation todetermine which employees to suspend. 24 P.S. §11-1124(a.1)(1).

If an administrator knowingly approves a suspension based on anemployee’s compensation, that administrator will have a letter placedin his/her file by the Secretary of Education indicating the violation.24 P.S. §11-1124(a.1)(2).


6

Furloughs of Professional Employees: Act 55

Employees must be suspended based on the two most recentperformance evaluations.

This new performance-based system must be utilized for allsuspensions under Section 1124, not just economic furloughs.


7

Order of Furloughs

Employees with 2 consecutive

unsatisfactory ratings

Employees with 1 unsatisfactory

and 1 satisfactory rating

Employees with 2 proficient or 1 proficient or

distinguished and 1 needs

improvement rating

Employees with 2 distinguished or 1 proficient and 1

distinguished rating


8

Within each of these performance evaluation categories, employees must be suspended in inverse order of seniority.

In the following order, within the area of certification required for the professional employee’s current position:

Order of Furloughs: Area of CertificationAct 55 provides that professional employees will be furloughedwithin each affected certification area where currently assigned. • Prior to Act 55, seniority governed within and across all certification areas and

realignment of staff was required so that more senior employees could bump less senior employees.

• Under Act 55, realignment, bumping and checkerboarding are eliminated and an employee’s performance evaluation rating is considered before seniority.

• More senior employees are no longer entitled to be given an opportunity to fill other positions for which they are certified and which are currently occupied by less senior employees.


9

Order of Furloughs: Overall Performance Rating

Section 1125.1(a.1) provides that when “more professional employees receive the same overall performance rating than there are suspensions” seniority will apply. 24 P.S. 11-1125.1(a.1).

What does “overall performance rating” mean?• The term is not defined anywhere, nor is it used anywhere else in the section.• Does having “the same overall performance rating” mean being in the same bucket

even though one employee may have 2 proficient ratings while another has 1 proficient and 1 needs improvement? Or does it mean those with 2 proficient ratings have the same overall performance rating and those with 1 proficient and 1 needs improvement have the same overall performance rating?

• PDE’s FAQ does not address this question specifically, but assumes that “overall performance rating” means the same bucket, regardless of rating.


10

Order of Furloughs: Importance of Evaluations

A school district’s administrative team must be well-versed on how to perform thorough and correct evaluations.

Evaluations will directly impact the order in which all professional employees will be furloughed, for any reason.

Something to consider: Are evaluations more likely to be grieved because of the impact they will now have on furloughs?


11

Order of Furloughs: An ExampleYour School District has determined that due to a consolidation of schools, it needs to furlough 3 professional employees in the Art department. Which 3 teachers will be furloughed under Section 1125.1?• Teacher A has 25 years of seniority, has been teaching Art the past 5 years, is also certified in English and

received a proficient rating in each of the past two years.

• Teacher B has 10 years of seniority, taught Art for 2 of the past 3 years, but this past school year taught English. She received a needs improvement two years ago, but a proficient this past school year.

• Teacher C has 8 years of seniority, began teaching Art last year, is also certified in Chemistry and received a proficient rating two years ago, but a distinguished rating this past school year.

• Teacher D has 18 years of seniority, has been teaching in the Art department for 20 years, has no other certifications and has received a distinguished rating in each of the past two years.

• Teacher E has 22 years of seniority, has been teaching Art for the past 7 years, is also certified in Social Studies and received a proficient rating in each of the past two years.

• Teacher F has 4 years of seniority, is certified for Art but is currently teaching Social Studies, she has no other certifications and has received a distinguished rating in each of the past two years.


12

Order of Furloughs: An ExamplePRIOR TO ACT 55

Teacher A has the most seniority and would bump into an English position.

Teacher E has the second most seniority and would bump into a Social Studies position.

Teacher D has the third most seniority but has no other certifications. She would be furloughed.

Teacher B has the fourth most seniority and would remain teaching English.

Teacher C would be furloughed (assuming she cannot bump into a Chemistry position) despite her distinguished rating.

Teacher F would be furloughed, even though she doesn’t teach Art, despite his two distinguished ratings.

AFTER ACT 55

Teacher B is not currently teaching Art and therefore is not be eligible for furlough.

Teacher F is not currently teaching Art and therefore is not eligible for furlough.

Teacher A and Teacher E are the first to be furloughed because they each received two (2) proficient ratings in the past two (2) years.

Teacher C received one (1) distinguished and one (1) proficient rating and Teacher D received two (2) distinguished ratings in the past two (2) years. Teacher Cwill be furloughed because Teacher D has more seniority.


13

Order of Reinstatement

Employees with 2 distinguished or 1 proficient and 1

distinguished rating

Employees with 2 proficient or 1 proficient or

distinguished and 1 needs

improvement rating

Employees with 1 unsatisfactory

and 1 satisfactory rating

Employees with 2 consecutive

unsatisfactory ratings


14

Within each of these performance evaluation categories, employees must be reinstated in the reverse order they were suspended, based on seniority.

In the following order, within the area of certification required by law for the vacancy being filled and within the school entity:

Economic Furloughs: The ProcessIn order to suspend professional employees assigned to provideinstruction directly to students under this section of the SchoolCode, a school district must also suspend an equal percentageproportion of administrative staff.• The school district may choose to exempt 5 administrative staff

positions from this requirement, one of which must be theBusiness Manager or equivalent position.


15

Economic Furloughs: The ProcessWhat is “administrative staff?”

• There is a no definition of “administrative staff” in section 1124 or elsewhere.

• The term “school administrator” is defined in the School Code

• PDE has concluded that there are “sufficient indications in section 1124 upon which toconclude that the General Assembly intended that the term ‘administrative staff’ have adifferent meaning than that for ‘school administrator.’”• PDE issued an FAQ on suspensions and furloughs which indicates that “when

identifying those job positions to categorize as ‘administrative staff,’ a school entityshould consider all employees who are not assigned to provide instruction directlyto students, including those categorized as school administrators and those providingservices in a district’s or other school’s administration or business offices, fordesignation as ‘administrative staff.’


16

Economic Furloughs: The ProcessThe Secretary of Education may grant a waiver of this requirement if he/shedetermines:• The school district’s operations are sufficiently streamlined, OR

• The suspension of administrative staff would cause harm to school stability and studentprograms.

• The State Board of Education must also approve the determination.


17

Economic Furloughs: The ResolutionThe school entity must pass a resolution of reduction by a majority of all schooldirectors not less than sixty (60) days prior to the adoption of the final budget.

The resolution must contain:

1. The economic conditions of the school district making the proposedsuspensions necessary and how the proposed suspensions will alleviate theeconomic conditions described including:◦ the total cost savings expected to result from the proposed suspensions;

◦ a description of other cost-savings actions taken by the school board, if any;

◦ the projected expenditures of the of the school district the following fiscal year with andwithout the proposed suspensions; and

◦ the projected total revenues of the school district for the following fiscal year.


18

Economic Furloughs: The Resolution2. The number and percentage of employees to be suspended who providedirect instruction to students;

3. The number and percentage of employees to be suspended who areadministrative staff;

4. The number and percentage of employees to be suspended who do notprovide direct instruction and are not administrative staff;

5. The impact of the proposed suspensions on academic programs to be offeredboth with and without the proposed suspensions and the actions, if any, thatwill be taken to minimize the impact on student achievement.


19

Economic Furloughs: Collective BargainingAny new collective bargaining agreement negotiated cannot nullifythe causes of suspension or change the order of suspension rules.

Any current collective bargaining agreement that prohibits thesuspension of professional employees for economic reasons orwhich conflicts with the new language regarding order of suspensionshall be discontinued in any new or renewed agreement or contractor during the period of status quo following the expired contract.


20

Questions?


21

Thank You!

Additional comments or questions:

Ira Weiss, [email protected]

Weiss Burkardt Kramer, LLC445 Fort Pitt Blvd., Suite 503

Pittsburgh, PA 15219Phone: (412) 391-9890


22

mailto:[email protected]

Documents

Act 55: Major Changes in the Rules for Furloughs of School ... · Act 55 of 2017 On November 6, 2017, Act 55 of 2017, which amended the Pennsylvania School Code of 1949, became law