CONFIDENTIAL 1 DOWNSIZING IN PUBLIC SCHOOLS: RIF PLANS, PROCEDURES AND PITFALLS Presented by: R. Craig Wood

CONFIDENTIAL 2 Practical Framework Reductions in Force are a way to save costs by reducing the cost of compensation There are also alternative ways –Salary and benefit reductions –Furloughs –Mandatory use of paid time off –Reduced work schedules

CONFIDENTIAL 3 The Legal Framework Va. Code § A school board may reduce the number of teachers, whether or not such teachers have reached continuing contract status, because of decrease in enrollment or abolition of particular subjects.

CONFIDENTIAL 4 The Legal Framework Va. Code § “Nothing in the continuing contract shall be construed to authorize the school board to contract for any financial obligation beyond the period for which funds have been made available with which to meet such obligation.”

CONFIDENTIAL 5 Legal Framework School boards must notify teachers who may be subject to layoff due to a decrease in the board’s budget within two weeks of approval of the budget by the appropriating body, or June 1, whichever is earlier.

CONFIDENTIAL 6 Legal Framework Other than the notice provision, the Code and Regulations are silent on the procedures boards should follow to enact reductions in force Accordingly, boards are free to develop their own procedures The procedures are generally set out in policy and the regulations enacting policy. Very important to review, update, know and follow your board policy

CONFIDENTIAL 7 So How Do You RIF Effectively? Identify and determine your objectives Budget realities – How much money do you have? Residual effects – What will your workforce look like after Downsizing is implemented? What do you need – What skills, abilities and talents do you need to meet your objectives?

CONFIDENTIAL 8 Analyze your work force What do you have: Certifications and endorsements/Highly Qualified teachers/Provisionally endorsed teachers Experience (in district and overall) Tenure Extra-curricular activities Diversity elements (age, gender, race, etc.) Special skills (foreign languages; bookkeeping skills; nursing experience; EMT training) Performance (evaluations)

CONFIDENTIAL 9 Develop a Plan Envision new workforce – What is the best post- Downsizing workforce you can create? Involve existing employees by effective communication to get buy-in that this is a fair and equitable process. Seniority is the easy way, but don’t buy into the myth that it is the best way. Make it a factor, but never let it be the “trump card.”

CONFIDENTIAL 10 Develop a Plan Know the law. Non-tenured staff can be released simply by appropriate and timely notices. Virginia law does not give preferences to continuing contract teachers in RIF situations. Board may layoff continuing contract teachers and retain probationary teachers, and may make certain positions immune from layoff. Underwood v. Henry County School Board, 245 Va. 127 (1993).

CONFIDENTIAL 11 Select employees –Use objective criteria as much as possible. –Use performance appraisals to retain the best and the brightest –Underlying assumption is Kids Come First – so retain your best teachers –Reduce risk of discrimination claims – The greatest legal risk.

CONFIDENTIAL 12 Consider exit incentives/releases –Outsourcing assistance. –Early retirement incentive plans –Recall rights.

CONFIDENTIAL 13 Discrimination Claims When discrimination is alleged in the context of a reduction in force, the plaintiff must prove (1) he or she was a member of a protected class; (2) he or she was performing to the employer’s legitimate expectations; (3) he or she was terminated; and (4) similarly situated employees outside the protected class were treated more favorably.

CONFIDENTIAL 14 Protected classes Female Racial minority Foreign national Religious minority Over 40 Disabled

CONFIDENTIAL 15 Measuring “legitimate expectations:” Evaluation scores Tenure/seniority (in the relevant job) Continued employment in the past

CONFIDENTIAL 16 Termination Layoff or RIF Significant demotion or reduction in status Non-renewal of contract

CONFIDENTIAL 17 Similarly-situated employees Comparators Evaluations (apples v. oranges?) Statistics Relevant characteristics

CONFIDENTIAL 18 Assessing the Risk of Discrimination Claims Analyze age, race, sex, disability status and other EEO categories. Be aware that employees might assert claims because they are pregnant, are caring for newborns or sick family members, or otherwise covered by ADA, FMLA, or workers compensation. It is wise to look at the group of employees targeted for layoff, and to determine whether statistically they appear to be different than the overall workforce.

CONFIDENTIAL 19 Avoiding Discrimination Claims Attempt to structure the RIF to avoid the appearance that employees in a protected group were targeted. Alternative methods are available that allow consideration of performance, endorsements, coaching assignments and other such factors. Another method is to establish a Downsizing Committee.

CONFIDENTIAL 20 The Downsizing Plan Provide justification for the layoff; Determine the extent of the layoffs, including which schools, programs, departments or activities will be affected; Create a process to determine which employees will be terminated;

CONFIDENTIAL 21 The Downsizing Plan Provide an internal review procedure for termination decisions and employee complaints; Consider a severance pay program favors employees who sign a waiver of legal claims; Develop an appropriate waiver of claims form; and Determine to what extent employees will have recall rights, and when those rights will end.

CONFIDENTIAL 22 Selection Criteria - Objective Seniority Job Elimination Compensation Level

CONFIDENTIAL 23 Subjective criteria Evaluations Performance “Importance” to district or school “Future potential”

CONFIDENTIAL 24 Fine-Tuning the Downsizing Plan If the selection process is one that involves evaluating an employee’s performance, develop criteria based on the actual job descriptions; Train administrators and supervisors who will be conducting the employee evaluations in evaluating the selection criteria; Subject performance-based downsizing evaluations to several layers of review to guarantee accuracy and non-discriminatory motives;

CONFIDENTIAL 25 Fine-Tuning the Downsizing Plan Conduct a disparate impact analysis on the proposed layoff list to ensure that a disproportionate number of EEO – protected employees are not subject to layoff; and Implement the waiver and release procedure to extinguish any potential claims.

CONFIDENTIAL 26 Furloughs There is the possibility that there could be a funding shortfall during the year due to a decrease in state or federal funding from that which was budgeted In that event a school board might want to consider a furlough of all employees rather than a RIF of some employees

CONFIDENTIAL 27 Furloughs A school board may implement temporary furloughs of employees including instructional personnel if there are insufficient funds for the school board to meet its financial obligations. 8 VAC , et seq. states that school boards shall not be obligated to contractual salary terms unless and until sufficient funds are approved by the appropriating body.

CONFIDENTIAL 28 Furloughs A temporary furlough may not extend longer than one contract year Furloughs on teachers may not exceed 10 days total during a contract year 8 VAC provides that up to 10 days of the 10-month, 200-day contract may be “activities as may be assigned or approved by the local school board.” This includes furloughs. See Supt’s Memo # (August 20,2010).

CONFIDENTIAL 29 THE END Business Department Capital Markets | Energy & Utilities | Health Care | International | Land Use & Environmental Mergers & Acquisitions, Securities & Corporate Services | Real Estate Transactions | Tax & Employee Benefits | Technology & Business Litigation Department Antitrust & Trade Regulation | Business & Securities Litigation | Complex Commercial Litigation | Financial Services Litigation | Government Investigations IP Litigation/Patents | Labor & Employment | Product & Consumer Litigation | Restructuring & Insolvency | Toxic Torts & Environmental Litigation ATLANTA BALTIMORE CHARLOTTE CHARLOTTESVILLE CHICAGO JACKSONVILLE LOS ANGELES NEW YORK NORFOLK PITTSBURGH RALEIGH RICHMOND TYSONS CORNER WASHINGTON, D.C. WILMINGTON ALMATY, KAZAKHSTAN | BRUSSELS, BELGIUM  2012 McGuireWoods LLP