Education Reform Act: Frequently Asked Questions (and Answers)
What do I do if I did not have a meeting of my joint committee by December 1?
The Education Reform Act requires that a joint committee composed of equal representation teacher or union-selected members and equal representation board-selected members meet prior to December 1, 2011. This requirement is NOT covered by grandfathering, meaning that whether or not a district has a collective bargaining agreement that delays some of the effects of the new law, the joint committee is required to meet.
It is unlikely, however, that failure of the joint committee to meet would be fatal to implementation of a reduction in force but it could cause legal complexities, particularly if the employer and the union reach agreement on one of the permissible joint committee issues (an outcome other than one of the statutory defaults).
Honest and forthright communication is key to resolving problems. The specific facts, including whether or to what extent reduction in force is contemplated, as well as any RIF-caused changes to employee duties are critical components of successful discussions.
When must I have an evaluation tool incorporating student growth as a significant factor in place (PERA implementation)?
September 1, 2012 for all Principals and Assistant Principals;
September 1, 2012 for all of the teachers in 300 of Chicago's schools;
September 1, 2012 for schools receiving a federal 1003(g) school improvement grant;
September 1, 2013 for the remainder of Chicago schools' teachers;
September 1, 2015 for teachers in lowest performing 20% schools outside of Chicago; and
September 1, 2016 for teachers in all other schools.
A District may agree with its union (or the teachers themselves, if there is no union) to accelerate the date of implementation of a tool including student growth as a significant factor for teachers to as early as September 1, 2013.
Whether or not a District is within the lowest performing 20% of schools is not yet known. According to ISBE guidance, the determination will be made by test scores in the Spring of 2014.
Must I have a summative rating for nontenured teachers?
What happens if the joint committee does not reach agreement by February 1, 2012?
The failure to reach agreement results in no changes to the reduction in force procedure from the legal defaults of the law (to the extent one exists at law - otherwise a change necessary to comply with the law will have to be bargained). The "default" legal rules (or grandfathered collective bargaining agreement, to the extent it delays implementation of the law) will define how reductions in force are conducted. Boards are well-advised to communicate with their staff and legal counsel regarding the changed nature of reductions-in-force long in advance of the deadlines for the new requirements to avoid "surprise" at the results - agreement should (regardless) be reached as to the impact of failing to come to agreement on changes to the rules.
If the joint committee fails to reach agreement, is the board of education obligated to collectively bargain over the same topics, if the union demands to do so, regarding a reduction in force?
Probably. The law is not clear whether the joint committee replaces the bargaining obligation under the Illinois Educational Labor Relations Act to bargain a reduction in force, if the union demands, but it seems likely that a proper demand to bargain continues to obligate the employer to bargain a reduction in force, even after the conclusion of meetings with the joint committee. It is also possible that some agreements that were not possible to reach in the joint committee (because of the limited scope of the joint committee's legal authority, or because the joint committee did not agree to changes), could arise again in separate collective bargaining negotiations over the reductions in force.
What lists are now required?
The law now requires a district to create two new lists. The February 1 seniority-only list no longer exists (except in some collective bargaining agreements or policies) for teachers, but it continues to exist for non-certified employees.
The district must produce a sequence of honorable dismissal list at least 75 calendar days prior to the end of the school year. The 75-day list ranks teachers into one of four groupings:
Grouping 1: Each teacher not in contractual continued service who has not received a performance evaluation rating.
Grouping 2: Each teacher with a Needs Improvement or Unsatisfactory performance evaluation rating on either of the teacher's last two performance evaluations.
Grouping 3: Each teacher with a performance evaluation rating of at least Satisfactory or Proficient on both of the teacher's last 2 performance evaluation ratings, if 2 ratings are available, or on the teacher's last performance evaluation rating, if only one rating is available, unless the teacher qualifies for placement into grouping 4.
Grouping 4: Each teacher whose last 2 performance evaluation ratings are Excellent and each teacher with 2 Excellent performance evaluation ratings out of the teacher's last 3 performance evaluation ratings with a third rating of Satisfactory or Proficient.
The 75-day list is used for determining sequence of reductions in force.
The district must also produce a list by May 10 of this year, which applies to next year's reductions in force. The May 10 list must list employee qualifications.
Collective bargaining agreements may require a seniority list by February 1, even though the statutory requirement for this list has been eliminated. Any collectively bargained requirements should continue to be observed.
Should administrators be listed on the 75-day and May 10 lists?
Yes. Section 24-11 of the School Code defines "teacher" as any person required to have a teaching certificate issued by the State Board of Education. Since administrators must have teaching certificates, they should be on both lists. All certificated employees should appear on the May 10 list for each and all positions for which, as of that May 10, they were certified and qualified, both by Illinois and local district requirements.
Should part-time teachers be listed on the 75-day and May 10 lists?
Yes. The law makes no distinction between full and part-time teachers in respect to these lists.
Evaluation results and seniority both now have impact on reductions in force. To what extent are we required to communicate this information?
Districts must submit the 75-day list and May 10 list to the Union. The joint committee, however, may need the information from the lists (or proposed lists) to make effective recommendations and to be helpful to the administration and board in identifying potential issues.
Districts should not disclose the names of individual teachers except to the union on the 75-day list because a teacher's ranking would inevitably disclose the results of that teacher's evaluation. The statute prohibits districts from disclosing individual teachers' evaluations. However, the union (not the joint committee), as the representative of the teachers, is entitled to information about the groupings, and will need that information to appropriately represent its membership. The union (not the joint committee) may be provided the names of teachers and their order in the various groupings.
Are the union's representatives on the joint committee and the union one and the same?
No. The law limits the topics of discussion of a joint committee. The law also does not grant a joint committee power to override provisions in a collective bargaining agreement. However, as the union appoints one half of the committee, it is likely apprised of the work of the committee and perhaps exerts control over the positions taken by its appointees there.
If the district wishes to have authority to change something regarding the topics agreed to by the joint committee, certain circumstance might make it wise to obtain formal agreement from both the joint committee and the union, separately. This may obviate union demands to bargain changes reached by the joint committee, or worse, claims by the union that joint committee decisions violate existing collective bargaining provisions.
Do Family and Medical Leave Act leave days count as days of service toward the attainment of tenure?
Some limited FMLA days clearly must be counted toward the acquisition of tenure. It should be recalled that special, "education only" provisions of the FMLA make it possible to force a teacher or other educational employee not to return shortly before the end of a semester or school year, when the employee's FMLA leave would otherwise be over. The new law requires districts to "count" these days when the teacher might be prohibited by the employer from returning to work toward the days necessary in a year for that year to "count" toward tenure.
The new and relevant statutory language on attainment of tenure is:
e) For the purposes of determining contractual continued service, a school term shall be counted only toward attainment of contractual continued service if the teacher actually teaches or is otherwise present and participating in the district's or program's educational program for 120 days or more, provided that the days of leave under the federal Family Medical Leave Act that the teacher is required to take until the end of the school term shall be considered days of teaching or participation in the district's or program's educational program.
The law is not at all clear as to the definition of "required to take until the end of the school term," and does not otherwise define any distinction among various types of FMLA leave.
The safest answer for districts wishing to identify the year of progress toward tenure is to assume FMLA qualifying days count toward attainment of tenure, and to properly identify the date on which FMLA exercise begins. Regardless, districts are well-advised to carefully evaluate their employees regardless of year of service, anticipating both potential reduction in force and dismissal issues, and to consult with legal counsel in each case. FMLA leave tends to be fact and circumstances specific.
What changes have been made to the Illinois Department of Employment Security regulations regarding RIF or termination of employment?
Regulations of the Illinois Department of Employment Security now require that all employees laid off for a period in excess of seven days, or terminated, must be provided a publication of that department, entitled, "What Every Worker Should Know about Unemployment Insurance." Employers should be sure to make this a matter of routine. The IDES publication is available online at: http://www.ides.illinois.gov/Custom/Library/publications/Publications/Wh...