Legal Layoffs: A Guide to Reductions in Force
by Joy Baskin
What is a Reduction in Force (RIF)?
A RIF is the elimination of one or more job positions due to a financial exigency or program change. When a RIF occurs, job positions are eliminated and the employees currently holding those positions lose their jobs, even if they have done nothing wrong.
For term, probationary, and non-Chapter 21 contracts, the RIF process is set out in local policy. See TASB Policy DFF (LOCAL). For continuing contracts, Education Code section 21.157 requires a unique RIF process. See TASB Policy DFCA (LEGAL).
What is not a RIF?
Certain employees may be dismissed with little formality. These employees include at-will employees (at anytime) and probationary contract employees (at the end of a school year). Because the elimination of these positions is less complicated, the RIF process is not needed. Most districts look to these positions first when seeking to reduce personnel costs.
Follow the Rules
When courts and the commissioner of education review RIF decisions, they defer to the discretion of local school boards – as long as the boards follow their own RIF policies! When boards’ decisions are reversed, it is rarely due to the merits of the RIF, but rather the procedure used. The RIF procedure is important, because the board is supposed to be eliminating positions, not people. If a board tries to use the RIF process to target an individual employee rather than using the proper procedure to identify the employee, the decision is likely to be reversed. It may help to imagine that the RIF process is a funnel; it starts broadly, but narrows until eventually it focuses on the affected employees.
Step One: Declare a Need
How does this “funnel” work? First, the board must take action to declare a need for a RIF. This is done by declaring either a financial exigency or a program change. Both of these conditions are specifically defined in TASB Policy DFF(LOCAL).
Step Two: Identify Employment Areas
After declaring a need, the board must define the scope of the RIF. In accordance with policy, the superintendent may make recommendations to the board regarding the employment areas to be affected. In determining the affected areas, the board may combine or coordinate areas. The board’s choice of the affected employment area is significant, because all employees in the area must be considered for the RIF once the employment area is defined. Handpicking individual employees within the chosen employment area or picking employees from outside the affected area are grounds for reversal.
If the board follows its policy and its choice is reasonable and not based on illegal discrimination, courts and the commissioner of education will not second guess the board’s choice of affected employment areas. Collins v. Wolfson, 498 F.2d 1100, 1103-04 (5th Cir. 1974); Guidry v. Shelbyville ISD, No. 101-R1-598 (Tex. Comm’r of Educ. June 23, 1998).
Step Three: Apply Criteria for Decision
The district’s RIF policy should specify criteria, in order of importance, to be used to identify affected employees within the relevant employment area. After the board has declared the need for a RIF and identified the affected employment area, the superintendent then applies these pre-set criteria to all employees in the affected employment area to determine which employees will be recommended for discharge. The superintendent applies the criteria sequentially, until a sufficient number of positions have been identified. Applying the criteria out of order is grounds for reversal. In TASB Policy DFF (LOCAL), the criteria, in order of importance, are certification, performance, seniority, and professional background.
Step Four: Consider Affected Employees for Open Positions
Once the superintendent has applied the criteria to identify the affected employees, those employees must be considered for other available positions in the district for which they are qualified. This obligation applies only to actual, not speculative vacancies. The district may require affected employees to express an interest in open positions by applying for those jobs. Again, consult your local policy with respect to this issue.
Step Five: Begin the Nonrenewal or Termination
Just when you think you’ve reached the end of the RIF process, you’re at the beginning of the nonrenewal or termination process. After considering the superintendent’s recommendation (and if no vacancies exist for which the recommended employees are qualified), the board determines the employees to be proposed for nonrenewal or termination. The superintendent then provides the affected employees the required written notice of the proposed action. An employee receiving notice of a proposed nonrenewal may request a hearing in accordance with TASB Policy DFBB (LEGAL) and (LOCAL). An employee receiving notice of a proposed termination may request a hearing in accordance with TASB Policy DFD (LEGAL).
Tips for RIFs
1. Get advice from a financial expert before beginning the RIF process.
2. Read Policy DFF (LOCAL).
3. Follow Policy DFF (LOCAL)!
4. Take each step one at a time.
5. Let the process select the affected employees, not vice versa.
