by Vladimir Shuliga, Jr. (Fall 2017)

In a recent decision, an appellate court upheld a school district’s decision to eliminate all of its full-time educational support positions, and replace them with part-time positions. Haag v. Bd. of Education of Streator Elementary School District 44, 2017 IL App (3d) 150643.

After operating under deficit reduction plans for several years, the Board of Education of Streator Elementary School District 44 (“District”) decided to reduce all full-time educational support personnel (“ESP”) to part-time employees, with no more than 29 hours of employment per week, at the conclusion of the 2012-2013 school year.

The District engaged in impact bargaining with the ESP union for several months. After bargaining, the former full-time ESP employees filed a lawsuit claiming that the District’s decision to honorably discharge each full-time ESP and offer to re-hire each as a part-time ESP violated the Illinois School Code. The circuit court of LaSalle County ruled in favor of the District. On appeal, the appellate court affirmed the circuit court decision.

The plaintiffs in the lawsuit claimed that the District violated Section 10-23.5 of the School Code when it attempted to “recall” the plaintiffs into part-time rather than full-time positions. Section 10-23.5 provides:

 If an educational support personnel employee is removed or dismissed or the hours he or she  works are reduced as a result of a decision of the school board (i) to decrease the number of  educational support personnel employees employed by the board or (ii) to discontinue some particular type of educational support service, written notice shall be mailed to the employee and also given to the employee . . . together with a statement of honorable dismissal and the reason therefor if applicable.

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If the board has any vacancies for the following school term or within one calendar year from the beginning of the following school term, the positions thereby becoming available within a specific category of position shall be tendered to the employees so removed or dismissed from that category or any other category of position, so far as they are qualified to hold such positions. (105 ILCS 5/10-23.5.)

The employees argued that the District violated Section 10-23.5 in two ways. First, they argued that the statute allowed the District to reduce the employees’ hours only for one of the two reasons provided in the statute: (1) a decision to reduce the number of ESPs employed by the District; or (2) a decision to discontinue some type of educational support service. Second, the employees argued that the District violated Section 10-23.5 when it “recalled” employees to part time rather than full-time positions. The court rejected both arguments.

The court found that ESPs are considered at-will employees who have “far less expectation of continued employment than teachers subject to the [School] Code’s tenure protection provisions.” It found that courts have historically made a clear distinction between certified teachers and ESPs, and provided greater protections to teachers from lay-offs and reductions in hours. Therefore, the court followed precedent and found that tenure protections do not apply to ESPs.

Next, the court rejected the employees’ argument that the District violated Section 10-23.5 when it did not “recall” employees to full-time positions. The court found that recall rights are only triggered when employees are removed or dismissed rather than when their hours are reduced. Additionally, the court reiterated that no statutory authority precluded the District from reducing the hours of employees other than certified teachers. Thus, the court granted summary judgment in favor of the District and validated its authority to reduce the hours of its ESPs.

In Haag, the court resisted the plaintiffs’ attempt to expand the protections of the School Code. Although the court did not explicitly say as much, it sided with the District’s reading of Section 10-23.5. The District maintained that the layoff and recall procedure found in Section 10-23.5 was the procedure that the District must follow if a District had a reduction in force for the two reasons found in the statute. The District argued that, except for those two reasons, ESPs are otherwise at-will employees. The court was unequivocal in the distinction that it drew between certified teachers and ESPs. Certified teachers have statutory protection from reductions in force; ESPs   do not.

Each school district must evaluate the cost and benefit of maintaining full-time rather than part-time ESPs. However, the Haag court has made it clear that if a district chooses to reduce its full-time ESPs to part-time status, the district has the legal authority to do so. The decision affirmed the managerial rights of educational employers to structure and alter their non-certified staff to best serve the needs of that employer and community. Retaining the flexibility to set staffing is a vital tool that allows school districts to avoid or recover from difficult situations.

Naturally, the Haag decision did not strip all of a school district’s legal responsibilities when making such a staffing change. When considering altering the makeup of a district’s ESPs, labor and employment counsel should be consulted so that the district’s obligations under the School Code and any applicable collective bargaining agreement are fulfilled during the evaluation and decision-making process.