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Are Categorically Funded Certificated Hires Temporary Employees?

Stockton Teachers Assn. v. Stockton USD calls into question common practice.

Common Practice

California school districts have commonly classified employees hired directly into categorically funded positions as “temporary employees.” The legal basis for that classification is Education Code section 44909, first paragraph. Recent court opinions have indicated that such employees are in fact “temporary” and may be released prior to the end of each year. In Stockton Teachers Association v. Stockton USD, the California Court of Appeal sets forth more restrictive rules in this area and puts this common practice in serious jeopardy.

Stockton Teachers Assn. CTA/NEA v. Stockton USD (Cal. Ct. App., Mar. 1, 2012, C066039) 2012 WL 663158

For the 2008/2009 school year, Stockton USD hired several certificated employees under “temporary” contracts. The contracts specified their start date as July 28, 2008, and the end date as May 29, 2009, or at the end of the categorically funded project (whichever occurred first). Most of these employees believed their assignment was funded under QEIA.

Prior to March 15, 2009, the District conducted a certificated reduction in force and released its temporary employees. Several “temporary” employees challenged their classifications under Section 44909 and their release under Section 44954.

The Administrative Law Judge held that such employees were properly classified as “temporary” under Section 44909 and properly released under Section 44954. However, in its opinion dated March 1, 2012, the California Court of Appeals disagreed.

The Court of Appeal found that the employees were not “temporary” because there was no evidence that the categorical programs were expiring. Thus, the employees were probationary and were entitled to seniority, tenure, termination and reappointment in accordance with statutes applicable to regular probationary and permanent employees.

The Court set forth the following clarifying rules for employees hired directly into categorically funded programs:

  • The “temporary” classification under Section 44909 (first paragraph) is available only when all of the following elements are present (and provable):
    1. The employee was hired to perform a particular service funded under a particular contract with a public or private agency or a particular categorically funded project (not required by state or federal statutes); and
    2. The employee was hired for the term of the contract or project.
  • A school district may not hire a person for more or less than the term of the contract or project, and treat such a person as a “temporary” employee.
  • If an employee is hired under a contract or a categorically funded project for a term that is more or less than the term of the contract or project, then the employee is not “temporary.” Any such employee is a regular probationary employee upon hire and has accrued seniority and tenure accordingly.

Conclusions

  • Based on the holding in Stockton, an employee whose “temporary” classification is based on being hired into a categorically funded position, is a regular employee IF that employee was terminated prior to the end of the categorically funded program. The same is true if the employee was hired for a term that is not coextensive with the contract or project.
  • As a result, if a school district is running a certificated layoff and/or a simultaneous “temporary”/probationary zero release; it must reassess any employees classified as “temporary” (or probationary 0) based upon their hire under a contract or a categorically funded project in light of Stockton. It is advisable to consult legal counsel prior to March 15 to prepare for the circumstance that such employees will be considered regular probationary or permanent employees dependent upon their length of service.
  • One important caveat: This holding does not apply to employees hired as “temporary” under the “back-fill” provision of Section 44909. Put another way, this case does not apply to employees hired to “backfill” for regular employees in categorically funded positions (i.e. the second paragraph of 44909). Rather, it is limited to employees that are initially classified as temporary based upon employment in categorically funded positions (i.e. the first paragraph of 44909).
  • The holding in Stockton, provides some timely (or ill-timed) and new legal analysis on the classification of temporary employees. It will certainly be raised in any layoff hearing that involves categorical temporary employees.

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