Client Alert from the Education Law Group - March 2011
Senate Bill 5:
Summary of Provisions Directly Impacting
Public School Districts
By Susan R. Hartung
On March 2, 2011, the Ohio Senate amended and passed Senate Bill 5 ("SB5"), which would have significant impact on the collective bargaining rights of public employees, including school employees. We summarized the general impact which SB5 would have on the collective bargaining rights of public employees in a prior client alert.
While SB5 poses significant revisions for the bargaining rights of public employees, the bill also presents specific proposals that would significantly impact the operation of public school districts in Ohio. Below is a summary of the changes relevant to schools that would occur if SB5, as passed by the Senate, was to eventually become law.
School-Specific Changes
- Assignment Rights. The authority of the board to assign employees to a particular building and of the building principal to designate the responsibilities and workloads of employees assigned to the building cannot be restricted through bargaining.
- Acquisition of Noneducational Services. The authority of the board to acquire noneducational services from another public or private entity through competitive bidding cannot be restricted through bargaining.
- Class Size. Boards can take the position that restrictions on class size may not be established through bargaining.
- Community Schools. Community school employees do not have collective bargaining rights, except that all employees of a community conversion school who are already subject to a collective bargaining agreement ("CBA") can remain a part of that unit. Such employees would also remain subject to the CBA in place and all subsequent CBAs for that unit, unless the governing board submits a request to the State Employment Relations Board ("SERB") that the employees be removed from the bargaining unit that is the subject of that agreement. If a request is not submitted to SERB, all new employees of the community school are included in the bargaining unit to which they would have been assigned had the conversion not taken place and they shall be subject to the CBA for that unit.
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Conflict with Law. With few exceptions, a CBA entered into after the effective date of the bill may include a provision that conflicts with applicable law so long as the provision establishes benefits that are less than the benefits established by law.
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Continuing and Limited Contracts. Continuing contracts will cease to exist (eventually). For a teacher to be eligible for a continuing contract, the teacher must meet eligibility standards prior to the effective date of the amendment. The term of an initial limited teaching contract (entered into after the effective date of the amendment) can be no more than three years. The term of subsequent limited contracts is for two to five years.
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Leaves. A paid leave policy shall be adopted by the board for employees who are not covered by a CBA. The following must be included in the policy:
- the types of leave an employee may use;
- the reasons for which an employee may use the types of leave the board grants under the policy;
- the amount of each type of leave an employee may receive;
- the manner in which an employee accumulates each type of leave;
- the maximum amount of each type of leave that an employee may accumulate;
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the manner in which any previously accumulated leave of a person who has been separated from public service will be placed to the employee's credit upon re-employment in the public service;
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the manner in which a teacher or a non-teaching employee who transfers from one public agency to another will be credited with the unused balance of the teacher's or nonteaching employee's accumulated leave, up to the maximum of the leave accumulation permitted in the public agency to which the employee transfers;
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whether, and the manner in which, teachers and nonteaching employees who render part-time, seasonal, intermittent, per diem, or hourly service will be entitled to leave for time actually worked;
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the manner in which the board provides leave under teacher employment contracts; and
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any other issue relating to the use and availability of leave.
In the policy adopted by the board, it shall:
- not grant or credit sick leave in excess of ten (10) days per calendar year;
- not grant or credit sick leave to a teacher after the teacher's retirement or termination of employment;
- grant paid professional leave to any person it employs that is a member of the educator standards board for the purpose of conducting the official business of the educator standards board and its subcommittees.
CBAs entered into after the effective date of the bill shall not contain leave provisions that exceed the following:
- 6 weeks paid vacation annually prior to 20 years of continuous service;
- 12 paid holidays a year;
- 3 paid personal days a year; and
- a sick leave buyout of 50% of the employee's total sick leave accumulation up to 1000 hours.
- Merit-Based Pay. Salary schedules are eliminated and salaries are awarded based on performance. A board shall measure the quality of a teacher's performance by considering all of the following:
- the level of license the teacher holds;
- whether the teacher is "highly qualified;"
- the value-added measure the board uses to determine the performance of students assigned to the teacher's classroom;
- the results of the teacher's performance evaluations, peer review program or any other system of evaluation used by the board; and
- any other criteria established by the board.
- Minimum Number of Employees. The board may not be required to employ a minimum number of total employees or any category of employees through bargaining.
- Reduction-in-Force.
- Subject first to preferential consideration for employees with previously-attained continuing contracts, the board shall consider the relative quality of performance to be the principal factor in determining the order of layoffs;
- The board shall measure the quality of a teacher's performance by considering the factors laid out in the Merit-Based Pay section above;
- A board's right to make reductions for any reason found in the Merit-Based Pay section above and the board's right to determine the order of layoffs cannot be restricted through bargaining;
- When suspending contracts in accordance with an administrative suspension policy, the board may consider years of service in its decision if this is part of the administrative suspension policy, but it shall not be the only factor used in making the decision.
General Changes that Impact Schools
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Existing Provisions in the CBA. The continuation, modification, or deletion of an existing provision of a CBA is not a mandatory subject of bargaining. Thus, the board may opt not to negotiate that term without engaging in an unfair labor practice.
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Expansion of Management Rights. Unless specifically limited by an express written provision in the CBA, among other things, the board has the management right to:
- hire, discharge, transfer, suspend and discipline employees;
- determine the number of employees required to be employed or laid off;
- determine the qualifications of employees;
- determine the starting and quitting time and the number of hours to be worked by its employees;
- make and enforce work rules and regulations;
- determine the work assignments of its employees;
- determine the basis for selection, retention, and promotion of employees; and
- transfer or subcontract work.
Management rights cannot be restricted through bargaining after the effective date of the bill.
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Grievances. A grievance may be filed only upon the basis of a violation of the express written provisions of the CBA. Grievances cannot be filed on the basis of past practices or work rules.
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Health Care Benefits. Boards cannot pay more than 85% of the total cost of employee health care benefits (including medical/hospitalization, dental, vision, prescription and hearing aids) . Employees must pay at least 15% of the cost. The only issue subject to bargaining is the total amount of the premium. The benefits provided to management employees must be the same as those provided to other employees.
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No Strikes. Public employees are not permitted to strike under any circumstance. If employees unlawfully strike, the board has the right to:
- permanently replace the workers; and
- conduct an internal investigation, subject to a hearing, and deduct the employee's compensation at twice the employee's daily rate of pay if it is determined that an employee participated in an unlawful strike.
No deduction of wages, penalties or fines may be waived by a board as part of the settlement of an unlawful strike. SERB must order suspension of dues or fees to a union for the greater of 2 days or two times the duration of an illegal strike, if SERB determines that the Union/employees engaged in an illegal strike.
- Overtime. No CBA can include an hourly overtime payment rate that exceeds the overtime rate required under the Fair Labor Standards Act (i.e., an employee is entitled to 1½ times the employee's regular rate of pay for hours worked above 40 hours in a workweek). Therefore, it would appear - although there is some ambiguity - that boards can no longer pay overtime to an employee who works more than 8 hours a day, in the evenings, or on weekends, unless such hours would cause the employee to work more than 40 hours a week.
- Past Practices. CBAs cannot contain a provision requiring the board to adhere to, follow, or continue any practices or benefits not specifically set forth in the specific written provisions of the agreement. Thus, any "maintenance of standards" language that exists in a CBA would be null and void.
- Privatization/Subcontracting. CBAs cannot contain a provision:
- prohibiting privatization or subcontracting to another employer;
- requiring retention of existing employees if their work is privatized or subcontracted; or
- requiring payment of any additional compensation upon layoff due to privatization, except for accumulated time or leave payments.
Thus, any language restricting "outsourcing" or "subcontracting" that contradicts SB5 would be null and void, and boards could explore subcontracting for a wide range of services, including cleaning and transportation services.
- Retirement Funds and Pick-Up. The board cannot agree to pay any portion of an employee's, including an administrator's, contribution to a retirement fund.
The information in this Client Alert is a summary of often complex legal issues and may not cover all of the "fine points" of a specific situation or court jurisdiction. Accordingly, it is not intended to be legal advice, which should always be obtained in consultation with an attorney. The lawyers in Walter & Haverfield's Education Law Group will be pleased to assist with any questions about this new development in the law.
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