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Return to Home page School employee dismissals: A Primer : Publications : School District Articles : Ottosen Britz Kelly Cooper Gilbert & DiNolfo - Illinois Law Firm Representing Municipalities
School employee dismissals: A Primer
Legal Insights for School Districts (Winter 2008)

by Maureen Anichini Lemon

As your school board considers its staffing needs for the 2008-2009 school year, it must soon decide whether to release any employees prior to the end of the current school year. In general, non-tenured teachers must be notified of a dismissal at least 45 days before the last day of the current school term. Notice of a reduction in force of teachers must occur at least 60 days before the last day of the school term. Educational support personnel employees, by contrast, must receive notice of a reduction in force at least 30 days before they are dismissed. This article fully describes the statutory requirements pertaining to each type of dismissal.

Full time teachers completing fourth consecutive year of service

Any teacher first employed on a full time basis on or after January 1, 1998, must complete a probationary period of four consecutive school terms to attain tenure. Those teachers who will not attain tenure must receive written notice of dismissal stating the specific reason for the dismissal, by certified mail, return receipt requested, at least 45 days before the end of this school term. Failure by the school board to fully comply with this requirement will result in the attainment of tenure by teachers completing the last year of their probationary period.

Full time teachers not completing the last year of the probationary period

Any full-time teacher who is not completing the last year of the probationary period must also receive written notice from the school board at least 45 days before the end of the school term whether or not he or she will be re-employed for the following school term. The written notice of non-renewal to such employees does not need to include a reason for the non-renewal. If the school board does not give timely notice the non-tenured teachers will be deemed reemployed, and the school board must issue a regular contract to them for the following school year.

Reduction in force (RIF)

If the school board decides to decrease the number of teachers employed by it or to discontinue some particular type of teaching service, the school board must follow the RIF requirements contained in Section 24-12 of the School Code. The school board must first remove or dismiss all non-tenured teachers before removing or dismissing any tenured teacher who is legally qualified to hold a position currently held by a non-tenured teacher. Among tenured teachers, the teacher(s) with the shorter length of continuing service with the school district shall be dismissed first, unless an alternative method of determining the sequence of dismissal is set forth in a collective bargaining agreement.

Tenured teachers dismissed pursuant to a RIF must receive written notice by regular mail and either by certified mail, return receipt requested or personal delivery, at least 60 days before the end of the school term. Included with the notice must be a statement of honorable dismissal and the reason for the dismissal. All teachers dismissed as a result of a RIF must be paid all earned compensation on or before the third business day following the last day of pupil attendance in the regular school term.

Post-RIF vacancies

Each year, the school board shall, in consultation with the teachers’ union, establish a list categorized by position, showing the length of continuing service of each teacher who is qualified to hold such positions. Copies of this list should be distributed to the teacher’s union on or before February 1 of each year. The school board should refer to this list when vacancies arise after a RIF.

If the school board has any vacancies for the following school term or within one calendar year from the beginning of the following school term (i.e. through August 24th, 2009), the vacant positions shall be offered to the RIF’d teacher(s) by seniority as far as they are legally qualified to hold such positions. If the number of honorable dismissals based on economic necessity exceeds 15% of the number of full-time equivalent positions filled by certified employees (excluding principals and other administrators) during the preceding school year, then the school board must offer to the qualified RIF’d teachers any vacant position for the following school term or within two calendar years from the beginning of the following school term (i.e., through August 23, 2010).

Whenever the number of honorable dismissals based upon economic necessity exceeds five or 150% of the average number of teachers honorably discharged in the preceding three years, whichever is more, then the school board must hold a public hearing on the question of the dismissals. A majority of the full board (four members) must vote in favor of the reduction following the hearing and board review.

Educational support personnel

A school board has a longer period of time to decide its educational support staffing needs. If an educational support personnel employee is dismissed as a result of a school board decision to decrease the number of educational support personnel employees or to discontinue some particular type of educational support service, the board must give written notice to the employee, received at least 30 days before the employee is removed or dismissed.

The exception to this rule occurs when the employer is going to sub-contract the work previously performed by the educational support personnel. The sub-contracting scenario warrants a 90 day written notice and is subject to onerous requirements enacted into law in August, 2007.

In the non sub-contracting scenario, the notice must be sent by mail and either by certified mail return receipt requested or by personal delivery. A statement of honorable dismissal and the reason for the dismissal shall accompany the notice. Such a dismissal can occur at any time with at least 30 days notice; it is not tied to the last day of the school term as is a teacher RIF. The employee with the least seniority within a particular category of position shall be dismissed first unless a collective bargaining agreement establishes an alternative method of determining the sequence of dismissal. RIF’d educational support personnel employees shall be offered any vacancies within the category of position from which they were dismissed by seniority and so far as they are qualified to hold such positions, for the following school term or within one calendar year from the beginning of the following school term (i.e. through August 24, 2009).

As with teachers, the school board shall, in consultation with any exclusive employee representative or bargaining agent, establish an annual list, categorized by position, showing the length of continuing service of each full time educational support personnel who is qualified to hold such positions. Copies of this list shall be distributed to the exclusive employee representative bargaining agent on or before February 1 of each year. All RIF’d educational support personnel employees shall be paid all their earned compensation on or before the third business day following their last day of employment.

Conclusion
 
Your school board must count back 60 days and 45 days from the last day of the school term to ensure that teachers receive RIF and/or dismissal notices in a timely manner. Likewise, the school board must count back 30 days from the date of an educational support personnel employee’s desired termination date to ensure that the employee receives timely notice of the dismissal. For further information, please contact Maureen Anichini Lemon at (630) 682-0085 or mlemon@obkcg.com.
 

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