Re: Employment Status of Classified "Hourly" Employees
I am writing in regard to your August 14, 2008, memo (attached) on classified hiring practices, which you sent out to all District managers and supervisors. Your memo outlines District hiring practices which clearly violate the Education Code, and which the Guild believes has already resulted in District managers illegally terminating classified employees. This illegal conduct is totally unacceptable, and will result in immediate action from the Guild if not remedied by the District.
I say this with complete seriousness, and no small amount of regret. I understood us to have a mutual interest in working out a compromise plan both parties could agree to in order to avoid litigation and disruptions to existing programs which serve our students. It is unfortunate that you chose to send out this memo without finalizing discussions regarding the District's position on this issue with the Guild, as we are now in a situation where we must immediately act to protect employees who are being terminated, instead of collaboratively moving forward on this matter.
Below I will set forth the most significant ways in which your hiring practices violate the law:
(1) The memo directs District managers to illegally terminate classified employees.
Your memo misstates the requirements for “short-term” employees. The District states that short-term employees are any employees who have (1) worked for less than 195 days in one year, or (2) who have not exceeded 195 days in two consecutive years. The District applies these same requirements to the "service" being offered.
This characterization of “short-term” employees cannot be reconciled with the Education Code. Section 88003 clearly states that the end date of service for short-term employees “shall not extend beyond 75 percent of a school year" for short-term employees.
This allows for a situation where a person employed for less than one year may be exempt from the classified service, but it would never allow a situation where an employee who worked for 2 consecutive years could be exempt in any manner. Simply put, those employees who work in two consecutive years, and who are not otherwise exempted as students or professional experts, are part of the classified service. If an existing employee has worked any amount of time in one year, and just one more day in a second year, then, by law, that employee is in the classified service.
Once an employee starts that second year, there is no way for the "short-term" exception to apply. The "shall not" language in 88003 prohibits the Board from ever creating a short-term position that extends beyond one school year. Not only shall short-term positions "not extend beyond 75% of a school year," but the Guild can also easily make the legal argument that all employees who were not designated as "short-term" by the Board, before starting at the District are now in the classified service.
This hiring policy, in flagrant violation of Education Code section 88003 is disturbing. What makes it so much worse is that it is also being used to illegally terminate existing employees. District managers have been given clear marching orders to not rehire many existing classified employees, in the District’s ill-fated attempt to limit the size of the classified service.
In your memo you write:
“it is highly recommended that hiring supervisors and managers limit the number of days of service to a maximum of 160 days in any two consecutive fiscal years to allow for potential miscalculation which if over 195 days could result in additional liability to the District to place the position or worker in the classified service.” (Emphasis added.)
This is an illegal directive to terminate classified employees. When the District “limits the service” of any classified employee who has worked in two consecutive years - whether the employee has worked 160, 195 or any other number of total days - it is violating the law. The District keeps talking about its fear of “additional liability," but what it doesn't appear to grasp is that the most sure-fire way to incur “additional liability" is to wrongfully terminate an employee – and not "rehiring" an employee who is in the classified service, is terminating that employee.
The Guild is aware that hiring supervisors throughout the District are refusing to “rehire” classified employees, oftentimes based on the illegal criteria in your memo, and oftentimes based on simple confusion and misunderstanding generated by the sudden changes to the District’s hiring practices. Regardless of the cause, this conduct is unacceptable, and will result in litigation if not immediately remedied.
(2) The memo directs District managers to misuse “work-experience” in violation of the Education Code, California Code of Regulations and EERA.
Your memo also directs District managers to use student employees as their “first choice” for filling certain positions. The Guild is aware that to follow this directive, many hiring supervisors are assigning ostensible “work-experience” for classified employees. Again, the District is attempting to circumvent the Education Code, and reduce the size of the classified service to avoid “additional liability,” but is instead just magnifying the scope of its violations.
First, for existing employees, trying to assign them "work experience" to avoid classification is too little, too late. The employees were not initially hired as short-term or substitute employees, nor were they hired as part-time students in a work study or work experience program, and the Education Code default therefore is that they are in the classified service. Education Code section 88004 states “Every position not defined by the regulations of the board of governors as an academic position, and not specifically exempted . . . by 88003 . . . shall be part of the classified service.” There is no wiggle room here.
If the District attempts to replace these classified employees with student-employees, or if it attempts to force these employees out of the classified service by assigning them “work-experience,” then it is violating section 88003. Section 88003 states: “Employment of either full-time or part-time students in any college work-study program, or in a work experience education program shall not result in the displacement of classified personnel or impair existing contracts for services.” Thus, the District's new strategy in attempting to use work experience to displace classified employees is a blatant violation of the Education Code.
Second, the District’s actions violate the EERA. The District must negotiate with the Guild over any work experience requirements for these workers whom the Guild now represents. Insisting that Guild members must enroll in work experience is a unilateral change in the terms and conditions of employment for these employees; a mandatory subject of negotiations. The District action is analogous to suddenly requiring all contract office-technical or food service workers to enroll in a certain District course or risk termination; an action the District presumably would not attempt to take with these more-established groups. The same law applies to each, however, and the District must bargain with the Guild before imposing any unilateral changes on its members.
The Guild, therefore, is requesting the District bargain over any proposed “work-experience” requirements for any Guild members, and not implement any such requirements unilaterally. If the District insists on unilaterally imposing these requirements on the Guild, the Guild will have no choice but to file a request for injunctive relief and an Unfair Practice Charge with PERB.
Third, in assigning “work-experience” simply as a means to circumvent the Education Code, the District is violating the rules and laws for implementing a recognized “work-experience” program. The District is not allowed to use the work experience program the way it is threatening. California Code of Regulations states “Work-experience education authorized by this article includes the employment of students in part-time jobs selected and approved as having educational value for the students.” (Emphasis added.) (5 CCR 55250.3.)
The Code of Regulations starts with the premise that the individual has to be a student to even get into a work experience program. This is not the case here. Here, the District is taking a program designed for students and attempting to apply it to its employees. Second, the District would need to show that each job has educational value for the “student.” “Work-experience” implemented solely to avoid classification, without regard to the type of work being performed, has no educational value.
This program was designed for existing students to learn through work, not work through work, and the District the violates the Code of Regulations in attempting to apply this program to employees, not students, without regard to the educational value to each person.
Furthermore, the District is undoubtedly violating the Code of Regulations in how it is implementing its work experience program for part-time employees. Below are just a few of the requirements which would make it impossible for the District to actually enroll so many classified employees into a work experience program and be in compliance with these regulations.
- Each “work experience” plan must include a number of different written provisions. These written requirements include: a description of how the District will provide guidance to students in its plan, a description of each parties’ responsibilities, a description of how the District will evaluate the students, and how the District will award grades. (5 CCR 55251.)
- Each “work-experience” plan must also include specific student-criteria for participation. The student must pursue a plan which, “includes new or expanded responsibilities for the student beyond those experienced in previous employment,” and the student must “have the approval of academic personnel.” (5 CCR 55254.)
- The District must provide coordinating services for students enrolled in “work-experience,” including consulting directly with employers to discuss students’ job growth, provide written evaluations of students’ progress in “educational growth on the job,” and provide other services. (5 CCR 55254.)
-The District must follow numerous record keeping requirements, have an “job learning station,” it must follow requirements concerning credit for work experience, and many others requirements not mentioned in this letter.
The Guild doubts the District’s ability to follow these “work-experience” requirements for classified employees, and will follow-up on the District’s compliance if it becomes apparent that this program is being used to evade section 88003. Furthermore, even if the District could follow the record-keeping requirements, service requirements, etc.; it has already failed to meet the initial threshold of (1) providing the program to students, not employees, and (2) providing an educational benefit to the enrollees of the program. Use of this program for the District is simply not a realistic solution for reducing the size of the classified service, and the Guild will not allow the requirements of any “work-experience” plan to be subverted for this purpose.
(3) The District is incorrectly applying the full time student exemption.
The Guild agrees that the Education Code allows for a "full-time student" exemption from placement in the classified service. However, it is also clear that "full-time student" refers to students of the San Diego Community College, not other institutions. Since the Legislature favors work-study/work-experience as a means to provide student aid, it clearly exempted these students from 88003, and consequently from mandatory inclusion in the classified service, to help assist the District in finding work for its own students. This way the District would not be constricted in offering this type of student aid by the otherwise rigid requirements for classified service.
The District has no special interest in employing students from other community college districts or universities, except to the same extent that it has an interest in hiring any other outside applicant. Students from other institutions have no special standing in this District, and are similar in standing to any other potential outside job applicant, therefore there is no basis to exempt these outside full-time students from the requirements for the classified service.
The District must immediately cease in illegally terminating employees.
By refusing to “rehire” existing classified employees in violation of the Education Code, the District is rapidly closing the door on the ability of the Guild to work collaboratively with it to find a mutually acceptable solution to this problem. The Guild cannot and will not ignore the District illegally firing its members, and it will not hesitate in its representative capacity to protect their rights in court and before the PERB.
This, of course, is not and never was our preferred solution to this issue. The Guild envisioned a process where the parties would have time to work out a process for legally hiring employees in the future, and for the eventual placement of existing employees in the classified service, all while making sure that existing classified “hourly” employees were protected during this process.
Instead, in the District’s haste to limit the size of its classified service, an effort doomed to failure before it began, it has now created new violations which must be immediately addressed. This mad rush has also created an understandable level of confusion amongst District managers to the extent that the Guild no longer has confidence in their individual ability to identify which employees may or may not be terminated without violating the law since District managers are not trained in this nuance of the law.
The Guild is demanding that the District immediately rescind its illegal hiring practices outlined in your August 14, 2008, memo, and retain all existing classified or "hourly" employees for assignments in 2008, regardless of the length or characterization of the employee’s work history at the District. This proposal will give the parties adequate time to find a solution for this issue, it will take the onus for compliance off of the shoulders of individual hiring supervisors, and this will all be done while ensuring that the District does not illegally terminate employees who are already in the classified service while we continue to work on a transitional method for salary placement and other mandatory items of negotiations to ensure a smooth conversion with a minimal disruption to District programs.
The Guild is open to other good faith solutions, but any other plan which fails to protect all classified employees, or which relies on the discretion of the District, or its managers, in correctly identifying “short-term” employees in choosing who to “rehire,” is simply no longer tenable. Please respond to this request as soon as possible, and by no later than September 3, 2008.
Jim Mahler, President