Committee Substitute
for
H. B. 4518
(By Delegates Caputo, DeLong, Martin,
Louisos, Paxton, Perry, Duke and Sumner)
[Originating in the Committee on Education.]
(February 28, 2006)
A BILL to amend and reenact §18A-4-8g and §18A-4-15 of the Code of
West Virginia, 1931, as amended, relating to substitute
service personnel filling certain positions; accumulation of
substitute employee seniority.
Be it enacted by the Legislature of West Virginia:
That §18A-4-8g and §18A-4-15
of the Code of West Virginia,
1931, as amended, be amended and reenacted to read as follows:
ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.
§18A-4-8g. Determination of seniority for service personnel.
(a) 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 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 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.
(b) 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 not be
taken into consideration when implementing a reduction in force.
(c) 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.
(d) 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.
(e) Beginning on the first day of July, two thousand six, a
substitute school service employee shall acquire regular employment
status and with the exception of regular seniority if the employee
receives a position pursuant to subsections (2) and (5), section
fifteen of this article: Provided, That a substitute employee who
accumulates regular shall accumulate substitute employee seniority
while holding a position acquired pursuant to said subsections:
shall simultaneously accumulate substitute seniority Provided,
however, That upon termination of a leave of absence or a
suspension, the employee shall return to the status previously
held. If the employee returns to substitute status, the employee
shall retain any regular employee seniority accrued, however, this
seniority may not be used in the bidding process for regular
positions unless the employee again attains regular employee status
or has attained preferred recall status. County boards shall not
be prohibited from providing any benefits of regular employment for
substitute employees, but the benefits shall not include regular
employee status and seniority.
(f) 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
applies 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 shall 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 shall 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 shall 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.
(g) 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.
(h) Seniority acquired as a substitute and as a regular
employee shall be calculated separately and shall 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.
(i) School service personnel who hold multiclassification
titles shall accrue seniority in each classification category of
employment which the employee holds and shall be considered an
employee of each classification category contained within his or
her multiclassification title. Multiclassified employees are
subject to reduction in force in any category of employment
contained within their multiclassification title based upon the
seniority accumulated within that category of employment:
Provided, That if a multiclassified employee is reduced in force in
one classification category, the employee shall retain employment in any of the other classification categories that he or she holds
within his multiclassification title. In that case, the county
board shall delete the appropriate classification title or
classification category from the contract of the multiclassified
employee.
(j) 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.
(k) The seniority conferred in this section applies
retroactively to all affected school service personnel, but the
rights incidental to the seniority shall commence as of the
effective date of this section.
§18A-4-15. Employment of service personnel substitutes.
(a) The county board shall employ and the county
superintendent, subject to the approval of the county board, shall
assign substitute service personnel on the basis of seniority to
perform any of the following duties:
(1) To fill the temporary absence of another service employee;
(2) To fill the position of a regular service employee who
requests a leave of absence from the county board in writing and
who is granted the leave in writing by the county board, and to
fill the position of a regular service employee who is on workers'
compensation and absent: Provided, That if the absence is to
extend beyond thirty working days, the county board shall post the position of the absent employee under the procedures set forth in
section eight-b of this article. If a substitute service employee
is employed to fill the position of the absent employee and is
employed in the position for twenty or more working days, the
substitute service personnel shall have regular employment status
and be accorded all rights, privileges and benefits pertaining to
the position except the accumulation of regular seniority until the
regular employee returns to the position or ceases to be employed
by the county board: Provided, however, That if a regular or
substitute employee fills a vacancy that is related to a leave of
absence or the absence of an employee on workers' compensation in
any manner as provided in this section, upon termination of the
absence the employee shall be returned to his or her original
position: Provided further, That no service person may be required
to request or to take a leave of absence: And provided further,
That no service person shall be deprived of any right or privilege
of regular employment status for refusal to request or failure to
take a leave of absence;
(3) To perform the service of a service employee who is
authorized to be absent from duties without loss of pay;
(4) To temporarily fill a vacancy in a permanent position
caused by severance of employment by the resignation, transfer,
retirement, permanent disability, dismissal pursuant to section
eight, article two of this chapter, or death of the regular service
employee who had been assigned to fill the position: Provided, That within twenty working days from the commencement of the
vacancy, the board shall fill the vacancy under the procedures set
out in section eight-b of this article and section five, article
two of this chapter and the person hired to fill the vacancy shall
have and shall be accorded all rights, privileges and benefits
pertaining to the position;
(5) To fill the vacancy created by a regular employee's
suspension: Provided, That if the suspension is for more than
thirty working days, the county board shall post the position of
the suspended employee under the procedures set forth in section
eight-b of this article. If a substitute service employee is
employed to fill the suspended employee's position, the substitute
service personnel shall have regular employment status and be
accorded all rights, privileges and benefits pertaining to the
position except the accumulation of regular seniority until the
termination by the county board becomes final or the suspended
employee is returned to employment. If the suspended employee is
not returned to his or her job, the board shall fill the vacancy
under the procedures set out in section eight-b of this article and
section five, article two of this chapter; and
(6) To temporarily fill a vacancy in a newly created position
prior to employment of a service personnel on a regular basis under
the procedure set forth in section eight-b of this article.
(b) Substitutes shall be assigned in the following manner: A
substitute with the greatest length of service time, that is, from the date he or she began his or her assigned duties as a substitute
in that particular category of employment, shall be given priority
in accepting the assignment throughout the period of the regular
employee's absence or until the vacancy is filled on a regular
basis under the procedures set out in section eight-b of this
article. All substitutes shall be employed on a rotating basis
according to the length of their service time until each substitute
has had an opportunity to perform similar assignments: Provided,
That if there are regular service employees employed in the same
building or working station as the absent employee and who are
employed in the same classification category of employment, the
regular employees shall be first offered the opportunity to fill
the position of the absent employee on a rotating and seniority
basis with the substitute then filling the regular employee's
position. A regular employee assigned to fill the position of an
absent employee shall be given the opportunity to hold that
position throughout the absence. For the purpose of this section
only, all regularly employed school bus operators are considered to
be employed within the same building or working station.
(c) Regular school service personnel shall be returned by the
county board of education to the same position held prior to any
approved leave of absence or period of recovery from injury or
illness. The school service personnel shall retain all rights,
privileges and benefits which had accrued at the time of the
absence or accrued under any other provision of law during the absence and shall have all rights, privileges and benefits
generally accorded school service employees at the time of return
to work.
(d) The salary of a substitute service employee shall be based
upon his or her years of employment as defined in section eight of
this article and as provided in the state minimum pay scale set
forth in section eight-a of this article and shall be in accordance
with the salary schedule of persons regularly employed in the same
position in the county in which he or she is employed.
(e) Before any substitute service employee enters upon his or
her duties, he or she shall execute with the county board a written
contract as provided in section five, article two of this chapter.
(f) To establish a uniform system of providing a fair and
equitable opportunity for substitutes to enter upon their duties
for the first time, the following method shall be used: The
initial order of assigning newly employed substitutes shall be
determined by a random selection system established by the affected
substitute employees and approved by the county board. This
initial priority order shall be in effect only until the substitute
service personnel have entered upon their duties for the first
time.
(g) Substitute service employees who have worked thirty days
for a school system shall have all rights pertaining to suspension,
dismissal and contract renewal as is granted to regular service
personnel in sections six, seven, eight and eight-a, article two of this chapter.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.