H. B. 2805
(By Delegates Caputo, Paxton, Perry,
Stephens, Fragale and Poling)
[Introduced March 1, 2005; referred to the
Committee on Education then Finance.]
A BILL to amend and reenact §18A-4-8g of the Code of West Virginia,
1931, as amended, relating to substitute service personnel
seniority.
Be it enacted by the Legislature of West Virginia:
That §18A-4-8g 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 five, 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 or her 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.
NOTE: The purpose of this bill is to clarify the seniority
status of certain substitute service personnel.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.