Determining seniority for the purposes of layoff
Decisions of the Commissioner of Education, Decision 16,411
As a result of “budgetary constraints," the schoolboard voted to abolish four positions in the elementary tenure area.
One the factors that provided critical to the teacher's claimof having greater seniority than the two sixth grade teachers cited by her wasthat she had been granted an unpaid 23-day leave for maternity during herprobationary period.
The Commissioner, noting that Education Law §3013(2)provides that when a board of education abolishes a position, “the services ofthe teacher having the least seniority in the system within the tenure of theposition abolished shall be discontinued” and that Section 30-1.1(f) ofthe Rules of the Board of Regents defines seniority as follows: “Senioritymeans length of service in a designated tenure area ...,” said that theprincipal issue in this appeal is whether teacher was one of the four leastsenior teachers in the elementary tenure area.
With respect to the two teachers the board had “excluded” from the elementary tenure area,the Commissioner found that both were serving in the elementary tenure area and thus both should have been included on the seniority list for that tenure area.
This ruling, however, did not change the resultinsofar as the teacher’s appeal was concerned.
The Commissioner pointed out that the record demonstratedthat the teacher was still the least senior teacher in the elementary tenurearea as a result of her 23 days of unpaid leave taken during her probationaryperiod, noting that “It is well settled that days spent on unpaid leave of absencemay not be included in determining seniority.”**
With respect to such absence, one of the arguments advanced by the teacher in support of her appeal was that because she had taken the unpaid leave pursuant to the Family MedicalLeave Act [FMLA], her absence must still be included in calculating herseniority.
The Commissioner disagreed, noting that the FMLA specifically providesthat an employee “may, but is not entitled to, accrue any additional benefitsor seniority during unpaid FMLA leave.”*** The Commissioner quoted from the U.S.Department of Labor's FMLA guidelines wherein it states “The FMLA doesnot entitle an employee to the accrual of any seniority (or employmentbenefits) during any period of FMLA leave [.]”
Finding that the teacher “served 23 days less” than one ofthe sixth grade teachers and “at least three days less” than the other sixthgrade teacher, the Commissioner concluded that the teacher “was the leastsenior teacher in the elementary tenure area and [thus] was properly excessed.”
* The Commissioner’s decisionnotes that the superintendent notified the teacher of “an opening in anelementary teaching position” but the teacher had declined reappointment to theposition offered.
** With respect to employeesof the State as the employer in the Classified Service, 4 NYCRR 4.5(g) grants the appointing authority discretionto excuse certain absences during the individual’s probationary period. However,the minimum and maximum periods of the probationary term of the employee are tobe extended by the number of workdays of his or her absence[s] that are not so excused.Many local civil service commissions have adopted a similar rule.
*** See 29 C.F.R. §825.215(d)(2).
The decision is posted on the Internet at:http://www.counsel.nysed.gov/Decisions/volume52/d16411.html
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