05/21/2020

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In the last several weeks formerly routine staffing considerations have now become much more complex for school districts as a result of the COVID-19 pandemic. This post is Part 2 in a two-part series intended to provide some insight into addressing staffing considerations for licensed employees, both teachers and administrators.

As we noted in Part One, an initial joint statement was issued on March 17, 2020 and updated on March 27, 2020 by the Governor, Illinois Education Association, Illinois Federation of Teachers, Illinois Association of School Administrators, Illinois Principals Association, and Illinois State Board of Education to help assist with addressing staffing issues during the COVID-19 pandemic. 

The March 27, 2020, joint statement provides that, “the current law on teacher evaluation and Reduction in Force (honorable dismissal and layoff) remains in full force including all timelines and existing statutory language.”  Under the School Code, the nonrenewal of nontenured teachers or any reduction-in-force of tenured teachers requires notice at least 45 days prior to the end of the school term.  105 ILCS 5/24-11(d), 24-12(b) (2020). Similarly, notice of the reclassification by demotion or reduction in rank must be provided to principals or assistant principals by April 1 of the year in which their employment contract expires.  105 ILCS 5/10-23.8b (2020). These deadlines passed quickly after the Gubernatorial Disaster Proclamation and subsequent Executive Orders that closed school buildings to students. Consequently, most school districts were not in a position to make significant reductions in the number of licensed staff in advance of next year.

Regarding evaluations, the joint statement provides, “Any teacher evaluation that is not finished by the end of the school year will be considered “proficient” in accordance with 105 ILCS 5/24-11(d). Subject to existing contract language, evaluations that have been substantially completed; meaning that all classroom observations have occurred and all professional practice and student growth data has been collected, shall be finished remotely. We are working jointly to ensure on a non-precedential basis that certified staff whose last summative rating was excellent default to an excellent rating for this year if their evaluation cannot be finished.” Teachers who were in the evaluation cycle for the 2019-2020 school year should have their evaluations finalized in accordance with this guidance and should not otherwise be subject to evaluation next year unless required for other reasons (i.e. nontenured teachers, or those who were rated as Needs Improvement or Unsatisfactory). The joint statement also provides that “All timelines concerning needs improvement plans and remediation plans are paused until such time schools reopen statewide,” with the possibility that remediation plans currently in progress could be restarted in the fall.

The joint statement does not explicitly address the evaluation of principals and assistant principals.  If those employees’ evaluations remain uncompleted, the district should consult with legal counsel regarding the specific circumstances in question.

Of course, given the emphasis on remote learning, school districts are continuing to require work from their licensed employees. This will continue for next school year as well. The joint statement provides that, “the employer can expect school district employees to participate in work activities in some form. The concrete details of the work, including stipend work, that will occur during this timeframe must be worked out through mutual agreement, but negotiations should focus on ensuring (1) continuity of education through instructional remote learning, (2) provision of meals, (3) other student and staff support measures as appropriate for each district to effectuate instructional remote learning; and (4) ensuring the performance of essential district functions and operations.”

As schools plan for the next school year – and especially the possibility of more remote learning, or a combination of remote and in-person student attendance – additional negotiation over the format of remote learning should be expected. Lessons from the district’s experience with remote learning this spring should guide those discussions. In addition, if significant remote learning is necessary in the fall, changes may be inevitable. The process of finishing out the last few months of a school year is entirely different from beginning a new year, where students enter a new grade level with a new teacher and new subjects of study.

Even though nonrenewals and reductions in force are no longer available regarding licensed employees, school districts should consider all options available. Retirements and resignations that would normally have created a vacancy should be viewed as creating the potential for the restructuring of job duties or the distribution of shared responsibilities whenever possible. Even if negotiations are necessary, this may be more cost effective than adding to the headcount.

The best course of action for each school district will vary – depending upon the unique characteristics of its staffing needs, collective bargaining agreements, resources, and future operational plans. As the COVID-19 pandemic continues to develop, school districts should work with legal counsel to determine the best way to implement staffing changes to balance the obligations of the school code and collective bargaining agreements with the changing operational needs of the district and the health of everyone involved.

The attorneys at Whitt Law LLC are well-versed in the myriad of issues surrounding staffing considerations and are actively monitoring State action in response to COVID-19. Notably, the General Assembly is meeting in a Special Session that began yesterday, which has the potential to impact many school-related matters. Please contact Whitt Law Partner James R. Dougherty or Senior Attorney Brian R. Bare if you have questions regarding this Part Two on staffing considerations.

 

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